Smith v. Maljamar Oil & Gas Corp..., 3467.
| Decision Date | 27 August 1930 |
| Docket Number | No. 3467.,3467. |
| Citation | 293 P. 967,35 N.M. 255 |
| Court | New Mexico Supreme Court |
| Parties | SMITHv.MALJAMAR OIL & GAS CORPORATION. |
OPINION TEXT STARTS HERE
Syllabus by the Court.
Proof as to meaning by general usage of term “day work” in oil drilling contract, not otherwise explained or limited, held admissible.
The term “day work,” used in an oil drilling contract and not otherwise explained or limited therein, admits of proof that by general usage in the industry it includes work incident to stopping a gas leak where the operator had directed the contractor to attempt a shut-off at a place selected by the former.
Evidence held to warrant finding respecting meaning under general custom of term “day work” as used in oil drilling contract.
Evidence found to furnish substantial support for a verdict based on general custom.
Appeal from District Court, Eddy County; Richardson, Judge.
Suit by Tom Smith against the Maljamar Oil & Gas Corporation. From an adverse judgment, defendant appeals.
Affirmed and remanded.
Evidence found to furnish substantial support for a verdict based on general custom.
J. D. Atwood and Howard C. Buchly, both of Roswell, for appellant.
E. P. Bujac and Caswell S. Neal, both of Carlsbad, for appellee.
[1] Suit upon an oil drilling contract. It was oral, and, as stated in appellant's brief, provided as follows: “*** the contractor Smith was to drill the well to a depth of 3,500 feet for the price of $4.50 per foot, and $5.00 per foot beyond 3,500 feet; that the well was to be drilled in a good and workmanlike manner and the plaintiff was to furnish all necessary tools and labor; that the defendant was to furnish the casing, the drilling rig, the water and the fuel, and was to pay $75.00 per day for day work.”
Plaintiff was paid for the depth attained at the specified rate per foot, and also for some “day work.” The disputed question was whether certain work done entitled plaintiff to extra compensation as for “day work,” or was embraced in his undertaking to drill the well in a workmanlike manner. The judgment, following a jury's verdict, resolved this question in plaintiff's favor, and defendant has appealed.
The work in question was an attempt to underream, unsuccessful because the tool hung in the casing, and necessitating pulling the casing, straight reaming for 20 feet, and resetting the casing at this lower depth. Eight-inch casing had been set at 2,900 feet. At about 3,100 feet gas was encountered. Drilling continued to 3,200 feet, where 6 5/8 inch casing was set; whether at appellant's order being one of the disputed questions. The attempt at underreaming, with its consequences, was occasioned by the necessity of stopping a leak of gas into the hole when drilling was resumed after the smaller casing had been set.
Appellee admitted that there was no special or express agreement, either when he undertook the drilling job or when he performed the work in question, that it was to be considered “day work.” He relied for recovery upon an alleged custom of the industry, both local and general.
The trial court instructed that appellee relied upon custom, both local and general. He defined both terms. He further instructed that before the evidence of custom could be considered the jury must find that it was certain and uniform, and either known to the appellant or so generally known and recognized that knowledge of it should be presumed.
It is appellant's first contention here that the contract was plain and unambiguous and admitted of no proof as to custom. To the proposition that the terms of a contract cannot be varied by proof of custom, it cites Gooch v. Coleman, 22 N. M. 45, 159 P. 945; Romero v. Romero, 29 N. M. 667, 226 P. 652; Higgins v. Cauhape, 33 N. M. 11, 261 P. 813. As showing the application of the principle in oil drilling contracts, it cites Number One Oil Co. v. Wilcox, 95 Okl. 227, 219 P. 132; Hezlep v. A-1 Oil & Gas Co., 112 Kan. 661, 212 P. 881; Eldora Oil Co. v. Thompson (Tex. Civ. App.) 244 S. W. 505; Mills & Willingham, Law of Oil & Gas, § 202.
The principle contended for is not questioned. But, can it be said that the present contract is plain and unambiguous, or that the evidence of custom tends to vary any plain provision of it?
Certainly the parties contemplated the possibility of compensation per diem as well as per foot. Certain work was contemplated as included within the undertaking to drill in a...
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Tipton v. Clower
...certain other matters, testimony as to customs and practices as to those particular matters only is admissible, Smith v. Maljamar Oil & Gas Corp., 1930, 35 N.M. 255, 293 P. 967, and, when coupled with specific testimony, though conflicting, that Clower's employees were actually at the locat......