Syllabus by the Court.
A
simple receipt is an admission only, and not a contract, and
like any other admission, may be explained or contradicted by
parol, but if a contract be incorporated in a receipt, the
receipt may be explained or contradicted by parol, but the
contract cannot be, except in case of fraud or mistake.
Where
the parties had two distinct contracts, one to drill an oil
and gas well in Oklahoma, and the other to drill one in
Kentucky, a receipt in the following form
"Bartlesville, Okl., July 10, 1912. Received of J. R
Robertson forty-nine 24/100 dollars. In full of all demands
to date. And we further agree and guarantee to pay any lien
claims filed against Hammer lease for work on well No. 3
drilled by M. D. Vandeventer and completed May 27,
1912"--may be explained by parol evidence to show that
it related to the Oklahoma contract only.
Where
evidence on an issue in a case has been admitted and is
before the jury, and an offer is made of additional evidence
on the same issue, which the court can see from the record is
largely cumulative, even assuming that such evidence is
competent, its rejection is harmless error under the
provisions of Rev. Laws 1910, § 6005.
The
charge of the court considered, and no reversible error
found, as the case-made contains evidence fully justifying
the charge given.
Where
the defendant contracted with the plaintiff to pay him $1,000
for the use of his drilling outfit and for his personal
services for two months, the defendant to pay all expenses,
an instruction that if the jury find for the plaintiff the
damages would be for the difference between the contract
price and the amount be was reasonably able to earn by other
employment of a similar character, during the contract
period, after deducting the expenses of such other
employment, correctly lays down the measure of damages.
Commissioners'
Opinion, Division No. 2. Error to District Court, Washington
County; R. H. Hudson, Judge.
Action
by Montie Vandeventer against John R. Robertson. Judgment for
plaintiff, and defendant brings error. Affirmed.
The
measure of damages for breach of a contract for the use of
plaintiff's well-drilling outfit and his personal
services for two months was the difference between the
contract price and what plaintiff was reasonably able to earn
by other similar employment, after deducting the expenses of
such other employment.
This
was an action instituted by the defendant in error to recover
damages for the breach of a contract, which is hereinafter
set out. The petition alleged in substance:
"That
plaintiff was the owner of a complete string of drilling
tools; that he was ready and willing, on May 26, 1912, to
perform his part of the contract, but that the defendant
delayed him until June 18, 1912, and then refused to
perform unless plaintiff consented to certain modifications
of the contract, which plaintiff refused to do; that
plaintiff had been at all times able, ready, and willing to
perform, but had been unable to do so because of
defendant's default, and that the plaintiff had been
damaged in the sum of $1,000 because of such default.
Plaintiff also alleged that his copy of the contract had
been lost, and therefore, no copy was attached to the
petition."
The
plaintiff was afterwards allowed by the court to amend this
petition to conform to the proof, but it is not material to
set it out here. The answer was, in substance:
"(1)
A general denial; (2) a verified denial of the contract as
alleged by the plaintiff; (3) the making of a contract
(partly oral and partly written) on April 29, 1912, setting
out a copy of the written portion, and alleged the terms of
both the oral and written portions, alleging that defendant
was able, ready, and willing at all times after the making
of said contract to
perform the conditions thereof, but that plaintiff was not
able, ready, and willing to do so, and that, without any
fault, neglect, or default on the part of the defendant,
the plaintiff wholly failed, neglected, and refused to
keep, carry out, and perform the written portions of the
agreement; also that on July 10, 1912, after plaintiff had
wholly failed, neglected, and refused to perform the terms
and conditions of the written portion of the contract, and
while plaintiff was wholly unable so to do, the plaintiff
and defendant made a full, complete, and final settlement
of all their affairs and business, and defendant then paid
to plaintiff $49.24 in payment of all demands due from
defendant."
The
contract was as follows:
"This
contract, made and entered into this 29th day of April,
1912, by and between Montie Vandeventer of Bartlesville,
Oklahoma, hereinafter called party of the first part, and
John R. Robertson of Jacksonville, Illinois, hereinafter
called the party of the second part, witnesseth: That for
and in consideration of the stipulations hereinafter set
forth, the party of the first part agrees to furnish one
complete string of oil well drilling tools, consisting of
necessary machinery, tools, cables and standard derrick,
same being now located near Bartlesville, Oklahoma, and to
lease the same, together with his services unto the party
of the second part, for the purpose of drilling one or more
oil wells near Shelbyville, Kentucky, at a point or points
to be designated by said party of the second part, for said
party of the second part. That said party of the second
part to pay for all labor and expenses in placing said
machinery and tools on board cars at Bartlesville, and for
transporting same to Shelbyville, and for all labor and
expense in unloading same and erecting at point of drilling
operations. And upon completion of said work, the said
machinery, tools and derrick to be returned to
Bartlesville, Oklahoma, free of all costs to the party of
the first part. Said lease of tools and services to be for
the period of sixty days from the date that said derrick
and string of tools are placed on location for the well
near Shelbyville and ready for running for the sum of one
thousand ($1,000.00) dollars, with an option of continuing
same for an additional thirty days for the sum of three
hundred and fifty ($350.00) dollars. The first thousand
dollars above mentioned to be payable monthly at the rate
of five hundred ($500.00) per month. The said party of the
first part is to superintend all loading and unloading,
erection of derricks, etc., and prosecution of drilling
operations. The said party of the second part is to furnish
and pay for all necessary labor such as drillers and tool
dressers used in the prosecution of said work. In the event
that more than two wells are drilled, and should it be
necessary to purchase new cable for the additional wells,
it is agreed and understood that the party of the second
part is to pay for said cable and drill any additional
wells, but it is understood said cable is to be the
property of the party of the second part. It is also agreed
and understood that party of the second part is to pay the
railroad fare incurred by the party of the first part from
Bartlesville, Oklahoma, to Shelbyville, Kentuckv, and
return. The party of the first part agrees to prosecute
said work in a diligent and workmanlike manner.
John R.
Robertson,
Montie
Vandeventer."
To the
answer the plaintiff filed the following reply, in substance:
"That
he denies each and every affirmative allegation contained
in said answer inconsistent
with the allegations contained in his petition except such
as are hereinafter specifically admitted. Plaintiff denies
that, as set forth in said answer, he was not ready, able,
and willing to carry out his part of said contract, but on
the contrary avers as in his original petition. Plaintiff
further says that, as regards the settlement of July 10,
1912, referred to in defendant's answer, such
settlement only comprehended and embraced certain
differences arising out of this plaintiff's drilling of
the well on the Aisley Hammer lease in Washington county,
Okl., and did not extend to or embrace the contract sued on
herein, or any part thereof, and in this connection
plaintiff further avers that there never has been any
settlement, complete, final, or otherwise of his claim or
claims against the defendant, arising out of
defendant's breach of the contract sued on
herein."
The
instrument pleaded in the answer as a full and complete
settlement of all matters in dispute between the plaintiff
and defendant reads:
"Bartlesville,
Okla., July 10, 1912.
Received
of J. R. Robertson forty-nine 24/100 dollars. In full of all
demands to date.
And we
further agree and guarantee to pay any lien claims filed
against Hammer lease for work on well No. 3, drilled by M. D.
Vandeventer and completed May 27, 1912.
M. D.
Vandeventer.
A. F.
Vandeventer."
The
plaintiff below introduced evidence that tended to show that
he finished the well east of Bartlesville on May 26th, and
was then ready to go to Kentucky and fulfill his contract,
and that the drilling rig was torn down under the direction
of Robertson about two weeks thereafter, but was not shipped,
owing to the fact that Robertson was away, and did not return
to Bartlesville until June 18th. The plaintiff testified:
"Q.
Now, you say you had a conversation with Mr. Robertson on
June 18th, at the St. Clair Hotel. What was the first thing
said about this Kentucky part of the contract? A. I asked
him, I think, if he was ready to go to Kentucky; that I was
all ready, been waiting on him several days. Three weeks
was the time, I think. He said several garnishments had
come in against me, and he didn't know the cause of
them; he was not willing to go to Kentucky,
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