Tyrrell-Combest Realty Co. v. Adams

• Decision Date: 03 February 1927
• Docket Number: (No. 1448.)
• Citation: 291 S.W. 252
• Parties: TYRRELL-COMBEST REALTY CO. v. ADAMS.
• Court: Texas Court of Appeals

291 S.W. 252

TYRRELL-COMBEST REALTY CO. v. ADAMS.

(No. 1448.)

Court of Civil Appeals of Texas. Beaumont.

February 3, 1927.

Rehearing Denied February 16, 1927.

Appeal from District Court, Jefferson County; Geo. C. O'Brien, Judge.

Action by J. D. Adams against the Tyrrell-Combest Realty Company, in which defendant interposed a cross-action. Judgment for plaintiff and order overruling a motion for a new trial, and defendant appeals. Reversed and remanded.

Crook, Lefler, Cunningham & Murphy, of Beaumont, for appellant.

Howth, Adams & Hart, of Beaumont, for appellee.

O'QUINN, J.

Appellee sued appellant to recover $3,000, alleged to be due him under a written contract for the boring of certain water wells. Appellant answered by general denial, and specially that appellee failed to comply with the terms of the contract, which obligated him to drill a well or wells that would furnish 4,000 barrels of water every 24 hours, good for drinking, and suitable for all domestic and household purposes. Appellant also, by cross-action, sought judgment against appellee for $1,284.59, for money paid for labor and materials furnished at the request of appellee.

The case was tried to a jury upon special issues, upon their answers to which judgment was rendered for appellee in the sum of $1,715.14. This because by agreement of the parties that appellant had advanced to appellee the sum of $1,284.59 in the form of certain materials and labor, which, being deducted from the amount sued for, $3,000, left the sum for which judgment was given.

Motion for a new trial was overruled, and the case is before us for review on appeal.

The controlling question is whether appellee complied with the following clause in the contract:

(a) "To drill in sufficient number, not to exceed eight, well or wells on blocks twenty-five (25), forty-two (42) and forty-four (44), as directed by second party sufficient to produce every twenty-four hours consecutively for ten (10) days four thousand (4,000) barrels of good drinking water, suitable for all domestic and household purposes."

The evidence showed that two wells were bored, and the jury found that they furnished the quantity of water called for, and that the water was good drinking water, suitable for all domestic and household purposes. The contest in the main is whether the water was of the quality contracted for—"good drinking water, suitable for all domestic and household purposes." Appellant contended that the water produced was not good for drinking, nor suitable for all domestic and household purposes, because it contained too high a percentage of salt. It was shown by several expert witnesses — chemists who had made chemical analysis of the water — that it contained from 105 of 124 grains of salt to the gallon, and that such water was not good for either drinking or domestic purposes.

In attempting to show that the water was "good drinking water," and was "suitable for all domestic and household purposes," appellee offered the testimony of several nonexpert witnesses, and himself testified, that they drank the water and washed their faces and hands and their clothes in the water, and that it lathered with soap all right, and that it was good for drinking, and suitable for all domestic purposes. All of this testimony was objected to by appellant, on the ground that none of the witnesses so testifying had qualified as experts to testify as to the quality of the water, nor as to its effect on the human system, when drank regularly, nor whether water containing the percentage of salt shown was fit for domestic and household purposes, and, further, that the question at issue was a scientific one that could be determined only by expert witnesses duly qualified to testify as to the contents of the water and the effect a constant use of same would have on the human system when used for a considerable length of time, and as to the effect it would have on machinery and other things when used for domestic and household purposes — all of which objections were overruled, and the testimony allowed to go to the jury. Appellant duly preserved bills of exception to the...