Smith v. Patterson

Decision Date05 May 1927
Docket Number(No. 8991.)
Citation294 S.W. 984
PartiesSMITH v. PATTERSON.
CourtTexas Court of Appeals

Appeal from District Court, Brazoria County; W. S. Sproles, Special Judge.

Action by W. E. Patterson against T. L. Smith. Judgment for plaintiff, and defendant appeals. Affirmed.

A. E. & Carlos B. Masterson, of Angleton, for appellant.

Wilson & Follett, of Angleton, for appellee.

GRAVES, J.

This was a controversy over a verbal contract between them for the drilling of some water wells for appellant by appellee, under which the former was to furnish materials and the latter do the work at a stipulated price per foot; on a trial of it before the court, sitting without a jury, the appellee was awarded damages in the sum of $323.90 as for appellant's failure to furnish suitable material, as agreed, thereby preventing the appellee from performing the contract upon his part.

The appeal protests against the judgment on a number of grounds; the main ones being: (1) That appellant's general and special exceptions to his opponent's pleadings, as well as his plea of two years' limitation against the cause of action, should have been sustained; (2) that the court erred both in permitting Luther Patterson to testify that he had a contract with appellant to drill two artesian and two pump wells, or one artesian and three pump wells, and in letting the appellee himself detail conversations concerning such contract between himself and Luther Patterson, held between them in the absence of appellant; (3) the appellee's contract being one to furnish and deliver a completed artesian well, flowing artesian water, and he having failed to do so, he was not entitled over objection to testify, either that the water therefrom would have been flowing artesian water suitable for both people and stock, had the well been completed, or as to what caused his failure to complete it; (4) the court erred in not holding under the facts that the appellee accepted the pipe furnished him by appellant for the drilling of a completed artesian well, and then breached his contract by not only failing to complete and deliver such a well, but in losing the pipe, thereby terminating all liability of appellant to him.

In our opinion none of these contentions can be sustained. We here quote this much from appellee's brief as correctly reflecting what the record shows, as well as the properly inferable legal conclusions therefrom:

"The testimony of the respective parties was somewhat conflicting, but, since judgment was rendered in favor of the appellee as to a portion of his claim, the facts of course will be resolved in his favor by this court so as to sustain the judgment of the trial court. Therefore appellee's version will be accepted.

"Appellee, in brief, proved a contract between himself and appellant under which he was to drill two artesian water wells and two pump wells, or, if the first artesian well was too deep (this to be decided by appellant), then he was to drill one artesian water well and three pump wells.

"Appellant contracted to furnish pipe, casing, and strainers for the wells.

"Appellee was to be paid for his work at the rate of 80 cents per foot.

"Appellant furnished appellee with certain secondhand pipe, and appellee began the drilling of a well. He reached a depth of about 500 feet, when, by reason of the inferior and defective secondhand pipe furnished to him by appellant, the well was lost without any negligence on the part of appellee. Immediately thereafter, appellant instructed appellee to continue the drilling of said well. Appellee, before again beginning work, warned appellant that the pipe and casing he had furnished him for the work was defective and unfit to be used in the work, and protested against being required to use it. Appellant, however, instructed the appellee to use it, and did not procure and furnish appellee other pipe and casing.

"In pursuance of the instruction of appellant, appellee again began drilling the well and reached a depth of 658 feet. At that depth or a slightly lesser depth, an artesian water sand was encountered. If this well had been completed at the 658-foot depth, according to appellee, who had qualified as an expert water well driller, it would have flowed drinkable water.

"However, at this depth the well was lost, the pipe, by reason of its inferior and unfit quality, giving way and parting, without any negligence on the part of appellee. After the giving way and parting of the pipe, appellee was unable to proceed with the work on account of the condition of the hole, and the further fact that he did not have on hand sufficient pipe or casing to continue the work or begin the drilling of another hole. Appellee informed appellant of these facts and requested appellant to furnish to him the pipe and casing necessary to be used in the work so that he could proceed, advising appellant that, if he would do this, there would be no charge for the two lost holes. Appellant refused to furnish appellee the pipe and casing, and refused to permit him to proceed with the work. Each of the pump wells would have been 480 feet deep.

"Appellant was satisfied with the depth of 658 feet as not being too deep for the artesian well.

"Appellee proved the amount of his expenses in the work he did, as well as the amount of expenses he would have incurred in the drilling of the wells not drilled. He sued for $1,874.80, or, in the alternative, for $1,636.40, and recovered judgment for $323.90 and interest.

"Therefore it will be readily seen that the failure on the part of appellee to complete the contract was caused by the failure of appellant to abide by his contract to furnish to appellee suitable pipe, casing, and strainers to be used in such work, and in refusing to permit appellee to proceed with the work."

Among others, appellee cites in support of his right to the recovery, in the circumstances thus outlined, these authorities: Hahl v. Deutsch, 42 Tex. Civ. App. 1, 94 S. W. 443; Hoppes v. Williams (Tex. Civ. App.) 213 S. W. 328; Holiday Oil Co. v. Smith, 100 Okl. 172, 228 P. 775; McPherson v. San Joaquin County, 6 Cal. Unrep. 257, 56 P. 802; McConnell v. Corona; 149 Cal. 60, 85 P. 929, 8 L. R. A. (N. S.) 1171; Holiday v. Smith, 100 Okl. 172, 228 P. 775; Mitchell v. Boyce (Tex. Civ. App.) 120 S. W. 1016; Thompson v. Brown, 106 Iowa, 367, 76 N. W. 819; Cunningham v. Daves (Tex. Civ. App.) 141 S. W. 808.

We agree that they sustain the adjudication. The exceptions to the amended petition were all properly overruled, because it fully set out the appellee's cause of action as resting mainly upon averments to the effect that he contracted to drill specified wells —that is, one or two...

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5 cases
  • Snell v. Knowles
    • United States
    • Texas Court of Appeals
    • July 24, 1935
    ...assumed that all controverted issues were resolved by the trial court in support of the judgment which he rendered. In Smith v. Patterson (Tex.Civ. App.) 294 S.W. 984, 986, the rule is stated: "Every presumption not inconsistent with the record will be indulged in favor of the judgment, and......
  • Shepherd v. Woodson Lumber Co.
    • United States
    • Texas Court of Appeals
    • June 29, 1933
    ...Hines v. Kansas City Life Ins. Co. (Tex. Civ. App.) 260 S. W. 688, 690, pars. 2 and 3, and authorities there cited; Smith v. Patterson (Tex. Civ. App.) 294 S. W. 984, 986, par. 3; Schulte v. Republic Supply Co. (Tex. Civ. App.) 297 S. W. 667, par. 1; Wingart v. Baxter (Tex. Civ. App.) 30 S.......
  • Hanks v. Magnolia Petroleum Co.
    • United States
    • Texas Supreme Court
    • February 12, 1930
    ...that the same was determined adversely to plaintiff in error. Silliman v. Oliver (Tex. Civ. App.) 247 S. W. 902; Smith v. Patterson (Tex. Civ. App.) 294 S. W. 984. The judgment rendered being a proper one under the undisputed facts, it is our duty to affirm the same, even though the trial c......
  • Jordan Drilling Co. v. Starr
    • United States
    • Texas Court of Appeals
    • November 23, 1949
    ...by the driller has been held to excuse performance in this State. Hahl v. Deutsch, 42 Tex.Civ.App. 1, 94 S.W. 443; Smith v. Patterson, Tex.Civ.App., 294 S.W. 984, Wr. The more difficult question is whether Jordan, by attempting to drill the cement out of the casing, waived his excuse for fa......
  • Request a trial to view additional results

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