Smoot v. Dennison

• Decision Date: 03 July 1917
• Docket Number: No. 14667.,14667.
• Citation: 196 S.W. 1018
• Parties: SMOOT v. DENNISON et al.
• Court: Missouri Court of Appeals

196 S.W. 1018

SMOOT v. DENNISON et al.

No. 14667.

St. Louis Court of Appeals. Missouri.

July 3, 1917.

Appeal from Circuit Court, Scotland County; N. M. Pettingill, Judge.

"Not to be officially published."

Action by H. V. Smoot against C. A. Dennison and Carl Pence. Judgment for plaintiff, and defendants appeal. Affirmed.

E. R. McKee, of Memphis, for appellants. W. T. Rutherford, of St. Louis, Lewis Myers, of Memphis, and J. A. Whiteside, of Kahoka, for respondent.

BECKER, J.

This is an action brought by plaintiff to recover from the defendants the sum of $49.20, which is alleged to represent the difference actually paid by plaintiff to the defendants upon a contract for boring a well upon plaintiff's farm, and the amount really due under said contract. The case originated in the justice court, and on appeal was tried before the judge and a jury in the circuit court, where a judgment was returned in favor of plaintiff for the sum of $49.20, from which the defendants appeal.

The facts in the case as they appear from the record are that plaintiff employed the defendants, who were partners and owners of a well-boring machine, to bore a well upon his farm in Scotland county. The testimony on behalf of the plaintiff was to the effect that the verbal contract specified that plaintiff was to pay defendant 75 cents per foot in the event the well, when completed, furnished water in sufficient quantity to water his stock; otherwise the price to be paid was to be 15 cents per foot. The testimony on behalf of the defendants tended to prove that according to the contract, defendants were to bore the well for 15 cents a foot for the dry well, and were to receive 75 cents per foot if, "we got water and the well was cased"; that there was nothing stipulated as to how much water they were to obtain from the well. The facts disclose that the defendants bored a hole 82 to 83 feet deep, when they were stopped by reason of the fact that they struck a rock. There was some water in the hole at the time the defendants reached the rock in question.

The brother of plaintiff testified that the defendants came to him in the absence of his brother, when they had reached the rock, and talked to him about walling the well; that the defendant Dennison told him that if it was his well he would wall it; that it was a strong well, and that it would supply water in sufficient quantity to water his stock; that these representations were made to him before the well had been walled; that the defendants wanted to know what to do; and that the witness told them if it was a good well to wall it. Each of the defendants denied that he had made any representation to the brother of plaintiff, and each denied that he had made any statement as to the amount of water that the well would supply.

Plaintiff Smoot testified that he was not present when the defendants stopped digging; that after the well was tiled it was found to be impractical to pump the well by hand, and he therefore bought a gasoline engine; that when he began pumping he pumped the well dry the first day; that at no time thereafter could they, in a day, get over a half barrel of water from the well; that they tried pumping for 9 or 10 days, and after that did not get any water from the hole. Plaintiff stated that he paid defendants $61.50 under the contract; that this was paid about August 1, 1914, some two weeks before the gasoline engine was installed and before he had any opportunity to test the well; that after he found out the facts above set out, as testified to by him, he notified defendants; that defendant Dennison promised to talk to defendant Pence about it, and promised they would do what was right in the matter; that the defendants put him off from time to time and finally defendant Dennison told plaintiff "to take chances lawing," and plaintiff thereupon filed suit.

I. Error is assigned in that the court sustained the objection of plaintiff's counsel to the following question propounded to the defendant Dennison by defendants' counsel:

"Q. Did he [plaintiff] say whether or not Hollis would direct you what to do?"

Plaintiff's counsel objected to this question because it was leading, which objection the court sustained. We hold that the court properly sustained the objection in that the question is in point of fact leading. However, irrespective of that, the witness in question had already testified as to this matter as follows:

"I asked him [plaintiff] if he would be back the next day, and he said that he wouldn't, but Hollis would I don't know that he said Hollis would look after it. He said Hollis would be there."

It thus appears that the information sought to be elicited by the question had already been covered by plaintiff's prior testimony, and we hold that even if the court had been in error in sustaining the objection, it would...