Schulz v. Tessman

• Decision Date: 27 February 1899
• Citation: Schulz v. Tessman, 49 S.W. 1031, 92 Tex. 488 (Tex. 1899)
• Parties: SCHULZ v. TESSMAN et al.
• Court: Texas Supreme Court

49 S.W. 1031

SCHULZ v. TESSMAN et al.

Supreme Court of Texas.

February 27, 1899.

Error to court of civil appeals of Fourth supreme judicial district.

Action by Frank Tessman & Bro. against Arthur Schulz. Judgment for plaintiffs was affirmed in the court of civil appeals (48 S. W. 207), and defendant brings error. Reversed.

Otto Staffel, for plaintiff in error. Wurzbach & Wurzbach, for defendants in error.

GAINES, C. J.

This suit was brought by the defendants in error against the plaintiff in error to recover damages for the breach of a contract. The agreement was in writing, and by it in consideration of the defendants' in error, Tessman & Bros.', "boring a well on the premises of the said Arthur Schulz, at such a place as may be designated by him, and said well so bored by the said party of the second part shall furnish at least seventy-five barrels of water per day, to be estimated by a full test and trial, said water, if possible, to be good water for household and drinking purposes, in which event, the above quantity of waters being furnished," the plaintiff in error, Schulz, bound himself to convey a certain tract of land, consisting of 75 acres, therein described. In consideration of the promise on part of plaintiff in error, defendants in error agreed "to bore or drill a well on the land of said Schulz, and to furnish him the quantity of seventy-five (75) barrels per day in the well so bored or drilled, and to furnish good water, if possible; provided the same can be obtained at a depth of 800 feet or less; and to put in pump and all other material necessary, and complete said well in a good and substantial manner. The said Arthur Schulz to furnish casing, pump, windmill, and pipes and other material necessary." The defendants in error, the plaintiffs in the trial court, alleged in their petition the execution of the contract, and set out in hæc verba its substantial stipulations, and also alleged, in substance, that in pursuance of the contract they drilled the well to the depth of 725 feet, and that at that depth they were compelled to desist from the further prosecution of the work by reason of the failure of defendant to furnish a "shoe" for the casing, which it was necessary to use in order to drill the well. The "shoe," it seems, was a steel cylinder, intended to fit over the lower end of the casing, and intended to give the casing strength to prevent it from losing its shape. They also averred that they had reason to believe that they had got water of the quantity and quality desired, but that the defendant (the plaintiff here) refused to furnish a windmill and pump to make the necessary test to determine the question. They also alleged that the defendant took possession of the well, and closed it up, and refused to open it, or to permit the plaintiffs to open it, and thereby prevented the plaintiffs from completing their work. The damages were laid at "the sum of $1,000, with interest thereon at the rate of six per cent. per annum." The defendant pleaded a general denial, and also pleaded in reconversion, alleging, in substance, that the plaintiffs had negligently failed to prosecute the work to a successful determination, and that by reason thereof he had been damaged in the sum of $2,000, for which he asked judgment.

So far as we have been enabled to see, the defendant, upon the trial, introduced no evidence to show that he had been damaged by the plaintiffs' alleged failure to carry out their contract. When the application for the writ of error was presented, we examined the question of our power to grant a writ of error, and concluded that the plea in reconvention gave us jurisdiction over the case. The defendants in error have moved the court to dismiss the case for the want of jurisdiction, and the submission of the motion has been taken with that of the case. The contention of counsel for the defendants in error is that, since the defendant below introduced no evidence in support of his plea for damages, that cause of action should be treated as having been abandoned, and should not be looked to in determining the jurisdiction of the court. We are of opinion that the...