Thompson v. Brown

• Decision Date: 15 October 1898
• Citation: 76 N.W. 819,106 Iowa 367
• Parties: THOMPSON ET AL. v. BROWN ET UX.
• Court: Iowa Supreme Court

106 Iowa 367

76 N.W. 819

THOMPSON ET AL.

v.BROWN ET UX.

Supreme Court of Iowa.

Oct. 15, 1898.

Appeal from district court, Marshall county; Obed Caswell, Judge.

Action to recover damages for breach of contract. Trial to jury. Verdict and judgment for plaintiff, and defendants appeal. Affirmed.Boardman & Boardman, for appellants.

Meeker & Meeker, for appellee.

WATERMAN, J.

Plaintiff firm sues for breach of a contract partly written and partly oral, the written portion of which is as follows: “Bangor, Iowa, October 20, 1896. This article of agreement, entered into between J. H. Thompson & Son, of the first part, and W. H. Brown, second part: We, Thompson & Son, of the first part, agree to drill a well for W. H. Brown, second part, four-inch casing galvanized as far down as possible. W. H. Brown, second part, agrees to pay $1.00 per lineal foot, and furnish board for men and team. Said J. H. Thompson & Son to furnish plenty water, or no pay. Water to supply a 2 1/2-inch cylinder. W. H. Brown.” We shall refer to the oral terms of the agreement hereafter. The petition alleges that the contract was that plaintiff was to drill a well on the farm of Susannah Brown, the wife of W. H. Brown, at or near the dwelling house thereon, for which defendants were to pay the sum of $1 per lineal foot; and each agreed to sign a bankable promissory note for the full price, which note was to mature January 10, 1897. It is further charged that plaintiff commenced drilling the well October 20, 1896; that it purchased the required casing, especially ordered for said well, with the knowledge of defendants, and continued drilling until about November 20th of that year, and cased said well to the depth of about 80 feet; that at the depth of about 130 feet plaintiff broke its drill in the well, and, not being able to extract it, was obliged to begin a new well; that defendants refused to allow plaintiff to drill a new well, but drove the members of the firm from the premises. Damages are claimed in the reasonable value of the services of plaintiff and team; for cost of casing, repair of machinery, and the wear and tear thereof. Susannah Brown answers for herself, and denies having made any contract with plaintiff. W. H. Brown, in his original answer, does not put in issue any material fact alleged in the petition, but charges that plaintiff had been an unreasonable time at the work when he refused to permit it to proceed with a new well. He sets up also a counterclaim, in which he demands $8.75 for keeping an extra horse during five weeks; $1 for caring for plaintiff's team on four different Sundays; $49 for plaintiff's board, and the keep of animals; and $50 for general damage caused by such failure. In an amendment to his answer, W. H. Brown alleges that he desired plaintiff to drill a new well at another place on the farm after the accident to its machinery, and the failure of its first attempt, and that said firm refused so to do. By way of amendment to the petition, it is averred that said contract was made for the benefit of Susannah Brown, and that she knew said well was being drilled on her land. This amendment was filed on April 16, 1897, which was the day the cause came on for trial, and a motion to strike it was at once filed. As grounds for this motion, it is said that the amendment is not verified, although both petition and answer are sworn to; that it was filed too late, and takes defendants by surprise; and that the subject-matter thereof is immaterial. This motion was overruled, and an exception duly taken. This exception affords basis for one of the numerous assignments of error. The court was justified in permitting the amendment to be filed without verification. Code 1873, § 2680. As to the matter of surprise, we have to say that the amendment contains nothing of which evidence might not have been given under the original petition. We might with propriety have disposed of this matter on another ground. While this error is mentioned in appellants' brief, it is not argued. Under our well-known practice, errors not argued will not be considered. Young v. Railway Co., 92 Iowa, 583, 61 N. W. 209;Welch v. Spies (Iowa) 72 N. W. 548. One of the chief grounds of the motion arises in another form, and as it is discussed by counsel, as thus presented, and is also a matter involved under the original pleadings, it will next be noticed.

2. It is contended that Susannah Brown, not being a party to the contract, cannot be held liable in this action. The assumption of counsel seems to be that the written instrument signed by W. H. Brown constituted the whole agreement between the parties. This is not in accord with the case made by plaintiff. There is evidence tending to show that the wife was present and took part in the negotiations which led up to the agreement; that the writing was drawn and signed in her presence, and after its execution both she and her husband orally promised to give their joint note for the cost of the well. We think there can be no question but that the wife is a proper defendant.

3. It is claimed by defendants that, after the first well was abandoned, W. H. Brown pointed out a place upon a distant part of the farm where he was willing plaintiff might drill for a new well. Much is said by counsel for appellants in support of Brown's right to select the spot where the work should be done. It appears that the original contract was for a well in the vicinity of the house and barn. The place where Brown says he offered to permit plaintiff to drill the new well was not less than 80 rods from the buildings, and some of the witnesses say it was half a mile. It is undisputed that plaintiff, after the accident to its machinery, was willing to drill again in the vicinity of the spot originally selected, and that Brown refused to permit it, but, as defendants themselves claim, insisted that the work be done at the distant location which he pointed out. On this point the trial court instructed the jury, in substance, that, if it was found the...