De Pue v. McIntosh (State Report Title: De Rue v. McIntosh)

• Decision Date: 01 July 1910
• Citation: 127 N.W. 532,26 S.D. 42
• Parties: DE PUE v. McINTOSH. [*]
• Court: South Dakota Supreme Court

127 N.W. 532

26 S.D. 42

DE PUE v. McINTOSH. ^[*]

Supreme Court of South Dakota

July 1, 1910

Appeal from Circuit Court, Aurora County.

Action by Albert V. De Pue against R. L. McIntosh. From a judgment for plaintiff and an order denying a new trial, defendant appeals. Reversed.

Smith and McCoy, JJ., dissenting.

Fellows & Fellows, for appellant.

Preston & Hannett, for respondent.

CORSON J.

This is an appeal by the defendant from a judgment entered upon a verdict of a jury in favor of the plaintiff, and from the order denying a new trial. The action was instituted by the plaintiff to recover of the defendant the sum of $500 upon a contract entered into between the defendant, McIntosh, as party of the first part, and the plaintiff, De Pue, as party of the second part, the material parts of which are as follows: "That the party of the first part agrees to have the party of the second part drill him a flowing well on the N.W. 1/4 Sec. 26-105-65, Aurora county, S. D., on the terms and conditions: First. Said well shall be cased with not less than 2-inch standard casing at top and 1 1/4-inch at the bottom and drilled to artesian flow, if possible granitical formations excepted. Second. All necessary material, including gasoline, casing, etc., used in the construction of said well shall be furnished by the party of the second part, at his expense and free from any expense to the party of the first part. *** In consideration of the faithful performance of the above obligations, the party of the first part agrees to pay to the party of the second part the sum of five hundred dollars for the completion of said well." It is alleged by the plaintiff in his complaint "that under and by virtue of the terms of said agreement this plaintiff did drill for the defendant a flowing well, on the real estate mentioned and described in the said agreement, and did case the said well with standard casing in the manner contemplated in said contract, and this plaintiff duly done and performed each and all of the conditions of said agreement on his part to be performed." The defendant in his answer admitted the making of the contract, and that he had not paid the plaintiff for the same, and denies each and every other allegation in the plaintiff's complaint contained. And "defendant specifically denies that the plaintiff did drill and case a flowing well for the defendant under and in accordance with the terms of said contract; and denies that the plaintiff has ever performed on his part any of the conditions of said contract by him to be performed." The defendant for a further answer alleges "that the plaintiff commenced and attempted and pretended to drill a well for the defendant on defendant's said land; that plaintiff abandoned said well before the completion thereof and did not attempt to complete the same; *** that the work which plaintiff did perform in attempting and pretending to drill said well was so negligently, carelessly and unskillfully done that the same was and is of no value whatever to the defendant; that plaintiff abandoned said well before he had drilled the same to the artesian flow, and failed, neglected, and refused to drill the same to said artesian flow, although it was and is possible to drill a well to said artesian flow on defendant's land; that plaintiff failed to secure a flowing artesian well; and that said well as drilled and left by plaintiff is without value and utterly useless to defendant."

Prior to the trial the defendant served an amended answer, which was returned by plaintiff, and thereupon the defendant moved the court for leave to file such answer, which was denied by the court on the ground, as appears from the order of the court denying the same, "that in the opinion of the court the allegations and matters contained in said amended answer not contained in the original answer of the defendant, to wit, the sixth paragraph of said amended answer, constitute no defense in this case, and do not state facts sufficient to constitute a defense to plaintiff's action." The sixth paragraph of the amended answer sought to be filed is as follows: "That at the time of the making of the contract for the construction of said well the defendant was the owner of a large tract of land, upon which said well was to be drilled and constructed, and that said tract of land was used and designed to be used as a stock ranch, whereon the defendant kept and intended to keep a large number of cattle and horses, and that the sole object and purpose of drilling and constructing said well was to procure a flowing well to furnish sufficient water for said stock, all of which was well known to the plaintiff. That the plaintiff knew of the purpose for which the defendant desired said well, and represented to the defendant that he could and would construct a well that would flow and furnish sufficient water for the purpose for which the defendant desired to use the same. That for the purposes above stated, and relying upon the statements and representations of the plaintiff that he could and would drill and construct a well sufficient for the purposes for which the defendant desired the same, the defendant made and entered into said contract with the plaintiff. That the sole and only purpose for which the defendant desired said well was to furnish flowing water for the stock he was then keeping and desired to keep on said premises where the said well was to be drilled, as the plaintiff well knew. ***"

It is contended by the appellant that the court erred in denying defendant's motion for leave to amend his answer. The proposed amended answer was served upon the counsel for the plaintiff within 20 days after the original answer had been served. Section 149, Code Civ. Proc., provides: "Any pleading may be once amended by the party of course, without costs, and without prejudice to the proceedings already had at any time within twenty days after it is served, or at any time before the period for answering it expires; or it can be so amended at any time within twenty days after the service of the answer or demurrer to such pleading, unless it be made to appear to the court that it was done for the purpose of delay, and the plaintiff or defendant will thereby lose the benefit of a term for which the cause is or may be noticed. ***" It will be seen that by the express provisions of that section the defendant was authorized to serve an amended answer within 20 days subject to certain conditions. It would seem, therefore, that the defendant had the legal right to serve and file an amended answer in the case, and that by making the motion to the court for leave to so file it he did not waive his legal right, and we are of the opinion that the court, therefore, erred in denying the defendant's motion. The sufficiency of the defendant's amended answer as a pleading was not properly before the court on the motion. Its sufficiency was a matter to be determined upon a demurrer to the same in case it should be questioned by the...