White v. Wheeler, 6624
| Decision Date | 16 September 1960 |
| Docket Number | No. 6624,6624 |
| Citation | 355 P.2d 282,1960 NMSC 105,67 N.M. 346 |
| Parties | Ted M. WHITE, Plaintiff-Appellant, v. V. L. WHEELER, d/b/a Wheeler Drilling Company, Defendant-Appellee. |
| Court | New Mexico Supreme Court |
Edward P. Chase, Morton & O'Toole, Albuquerque, for appellant.
Edward E. Colby, Albuquerque, for appellee.
Plaintiff-appellant sued defendant-appellee in two causes of action. In his first cause of action plaintiff alleged a parol contract to complete a well which carried an implied warranty that the work would be done in a workmanlike manner and in accordance with good engineering practices; that defendant 'caused the drill bit to be broken within said well,' and that defendant breached his implied warranty by improvising 'an unorthodox tool manufactured in a crude and shoddy manner' and in using it got it stuck, thereby ruining the well.
The second cause of action alleges that while attempting to retrieve the drill bit which had been 'accidentally lost' in the hole, the defendant negligently used an 'improvised tool of shoddy and irregular manufacture' and lost the same in the hole, thereby ruining the well.
The defendant answered admitting the contract and the implied warranty, but denied any breach of warranty, unwork-manlike work, negligence or fault on his part, and counterclaimed for the balance alleged to be owing him for work under the cointract.
The case was tried to the court which found the issues for defendant and awarded him judgment for $6,750 against the plaintiff and counter defendant. The plaintiff then perfected this appeal.
The pertinent facts briefly follow. Plaintiff had a well in San Juan County, New Mexico, which had been drilled to a depth of 1,101 feet, and plugged, and he contracted with defendant to complete the drilling of the well by drilling out the plug, drilling 30 feet into pay sand, and then to install a control head for production, for which plaintiff agreed to pay defendant $13 per hour for the drilling rig and a crew of two workers, plus $2.25 per hour for extra labor. This is according to the court's findings, although plaintiff claimed the price was to be $12.50 per hour.
Defendant moved onto the job and consumed considerable time in fruitless efforts to drill out the plug, assertedly because he was using long stroke or 'fishing jars' instead of short stroke or 'drilling jars.' Plaintiff had a representative on the job, who finally reported defendant's lack of progress to plaintiff and recommended defendant's discharge. However, he was not discharged, and finally the plug was drilled out and the hole deepened to the desired depth.
At this point defendant was told by plaintiff's representative to run the tools into the hole and dangle them so as to make sure the hole was clear, and in the process of so doing the drill stem broke and was lost in the hole.
Thereafter, defendant attempted to fish the stem from the hole without success, and finally a wash pipe friction tool for fishing 'was ordered, manufactured and altered under the direction and control of plaintiff or his representative.' This is the tool which was alleged to have been 'unorthodox' and 'manufactured in a crude and shoddy manner' and described as an 'improvised tool of shoddy and irregular manufacture.' While this tool was being used, it broke and became lodged in the hole. Later efforts to clear the hole by defendant and by an expert employed by plaintiff who tried with defendant's help proved unsuccessful, and the well had to be abandoned as worthless.
Although in his first cause of action plaintiff alleged that defendant 'caused the drill bit to be broken within said well,' in his testimony he admitted that in well drilling such occurrences do happen without fault on the part of the driller. The court found that the losing of the tool was a 'normal hazard of drilling' and plaintiff in his brief agrees that this is correct.
Accordingly, it is clear that the default of defendant...
To continue reading
Request your trial
-
State ex rel. State Highway Commission v. Pelletier
...be determined. Hopkins v. Martinez, 73 N.M. 275, 387 P.2d 852; Huthison Lumber Co. v. Boney, 72 N.M. 194, 382 P.2d 525; White v. Wheeler, 67 N.M. 346, 355 P.2d 282. The requested findings discussed above, and the point made in connection with their refusal, are in no sense a substitute for ......
-
Alvarez v. Alvarez
...are the facts upon which the case must rest in this court. That this is the rule many times repeated by us is clear. See White v. Wheeler, 67 N.M. 346, 355 P.2d 282; Marrujo v. Martinez, 65 N.M. 166, 334 P.2d 548; Rone v. Calvary Baptist Church, Inc., 70 N.M. 465, 374 P.2d 847, to cite a fe......
-
Kerr v. Akard Bros. Trucking Co.
...treated similarly. Under our uniform holdings, findings not attacked are accepted as the basis for decision in this court. White v. Wheeler, 67 N.M. 346, 355 P.2d 282. Appellant states in her reply brief that her lengthy references to and quotations from the record in her brief in chief amo......
-
Hickman v. Mylander
...of fact made by the trial court are the facts upon which the case must rest, unless set aside by the Supreme Court. White v. Wheeler, 67 N.M. 346, 355 P.2d 282. We have reviewed the record and find there is substantial evidence to support the trial court's findings that there was no product......