Washa v. Harris

• Court: Arkansas Supreme Court
• Writing for the Court: SMITH, J.
• Citation: Washa v. Harris, 167 Ark. 186, 266 S.W. 944 (Ark. 1924)
• Decision Date: 22 December 1924
• Docket Number: 77
• Parties: WASHA v. HARRIS

266 S.W. 944

167 Ark. 186

WASHA v. HARRIS

No. 77

Supreme Court of Arkansas

December 22, 1924

Appeal from Prairie Circuit Court, Southern District; George W Clark, Judge; affirmed.

Judgment affirmed.

Chas A. Walls, for appellant.

Gregory & Holtzendorff and Cooper Thweatt, for appellee.

Failure of consideration is a valid defense to an action on a promissory note. 22 C. J. 1164; 118 Ark. 548; 105 Ark. 281. The remarks of the court, appearing after the second instruction requested by appellee, were favorable to the appellant, and he therefore cannot complain that they were erroneous. 86 Ark. 26; 88 Ark. 99; 109 Ark. 72. Instructions which it was thought to be susceptible of construction as an expression of opinion of the court as to the facts in the case should have been met by specific objections. 111 Ark 196, 203; 110 Ark. 117, 120. The testimony shows damages suffered by appellee in excess of the face of the note, and this is not even disputed by appellant. Appellee is therefore entitled to recoup in this action the damages suffered by reason of the breach of guaranty or warranty. 81 Ark. 550; 53 Ark. 159; 23 S.W. 707 (Ark.).

OPINION

SMITH, J.

Appellant Washa brought this suit to recover on a note dated May 14, 1921, for $ 1,102.50, executed by appellee Harris to the order of Krumpen Machine Company, and indorsed by the payee, "without recourse," to appellant.

Harris owned a rice farm, and, on July 21, 1919, contracted with Washa to drill a well to irrigate his land, for the contract price of $ 4,000, of which $ 3,000 was to be paid in cash upon the completion of the well and the balance of a thousand dollars one year thereafter. There was a guaranty that the well would furnish a flow of a thousand gallons of water per minute, and the contract provided that, if the well did not furnish this amount of water, Washa should, within five days, remedy the trouble, and, failing to do so, should drill another well, and, if the second well also failed to furnish the guaranteed amount of water, the cash payment should be returned.

The well was completed in November, 1919, and the latter part of that year or the first part of 1920 Harris paid Washa the $ 3,000 in cash and executed two notes of $ 500 each for the balance. The well was used in irrigating the 1920 crop, and the testimony shows that it did not furnish the guaranteed quantity of water, as a result of which fact Harris lost a considerable part of that year's crop.

The contract contained a provision as to what the measure of damages should be in the event the well failed to furnish the guaranteed amount of water; but we need not consider this provision, as it is unimportant on this appeal.

Washa was engaged in drilling wells, and bought the material used by him for that purpose from the Krumpen Machine Company, and he bought from that company the material used in drilling the well in question.

On May 14, 1921, Mr. Krumpen, of the Krumpen Machine Company, Washa and Harris met to test the well, a weir was put in, and the test was made. According to Washa, the test then made showed a flow of slightly more than a thousand gallons per minute, and Harris accepted the well, and, in payment thereof, executed the note in suit, and included in the note a year's interest then due on the two five-hundred-dollar notes which evidenced the balance of the thousand dollars due on the well, and the price of a pulley amounting to $ 42.50. This note was made payable to the Krumpen Machine Company, because Washa was indebted to that company for supplies which he had used in drilling the well in question and other wells. Later Washa drilled wells for the machine company, and the note was then indorsed over to him.

The testimony is in irreconcilable conflict as to the purpose for which the note was given. Harris testified that Krumpen was anxious to close the matter up, and, on behalf of his company, guaranteed that the well would thereafter flow a thousand gallons per minute, and the note was executed in consideration of this guaranty. Harris admitted that the well was made to flow practically a thousand gallons during the test, but he says this result was accomplished only by speeding the engine up to its highest capacity, a speed which could not be maintained, and that the well never again was made to flow as guaranteed. Harris further testified that he offered to give a check in payment of the pulley, but Krumpen said, "No, include it in the note," and that Krumpen accepted the note in consideration of his express guaranty that the well would thereafter meet the contract requirement.

Washa testified that he offered to drill a new well, but Harris stated that he preferred to keep the old one, although it did not meet the guaranty, because he had placed his engine, and did not wish to incur the expense of moving it. Harris denied this, and testified that he requested that a new well be drilled, but Washa said he was unable to do so, as he did not have the money.

Harris denied liability on the note, and filed a counterclaim in which he prayed judgment for the $ 3,000 cash which he had paid.

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