Pigott v. Clark

DESMOND, J.,

pro

tem.

Plaintiff recovered judgment in the sum of $1652.48 which the trial court found to be the balance due on certain promissory notes which had been transferred by one Mitchell to the plaintiff, the judgment also carrying costs.

The defendant appeals, not questioning the correctness of the amount which the court found was unpaid, but contending that no part of it is due or owing, claiming specifically that there'is insufficient evidence to justify the decision, or particularly one of the findings numbered XIII, which is hereinafter set forth.

The defendant, a veterinarian by profession, was the owner of an oil-well in the Alamitos Heights field. His superintendent, Howard Murchie, an oil man of many years’ experience, purchased in December, 1927, some 2%-inch upset tubing from Alfred W. Mitchell, doing business as Coast Supply Co. Mitchell had a 5-acre lot on which he kept pipe, tubing and other supplies. The tubing was kept in piles and the particular lot in question was selected by Murchie. It appeared at the trial that various kinds of tubing are used in oil operations, among them “Reading”, “D B X” and seamless steel tubing. “Reading” is an iron tubing, but, according to the testimony, the difference be-, tween iron and steel would not be discernible unless the tubing were cleaned and wiped off. The bill of exceptions before us does not indicate that Murchie appeared as a witness at the trial. Mitchell testified that Murchie selected the tubing after he examined it in the pile where it was placed on the Mitchell lot and accepted it, about a month before Dr. Clark called at the Coast Supply office and made settlement for the tubing by giving his promissory notes. It appears that no trouble was experienced with any of the tubing until October or November of 1928, almost a year after its purchase. At that time the tubing was “pulled” from the well and, according to defendant’s testimony, it

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was found then that the tubing that had been delivered was of two kinds, “Reading” and seamless steel. During the year 1929 the tubing was pulled approximately a dozen times. Whenever the tubing was pulled, it was found that joints of “Reading” had split, but the seamless steel tubing was intact. Finally, all the “Reading” tubing was replaced with seamless steel, no further trouble developing thereafter. Defendant set up a counterclaim by way of an affirmative defense claiming reimbursement in the sum of $526.51 for the replacement of the “Reading” joints and $1,000 for lost production resulting from delay and inability to pump the well while the pulling operations were under way. Dr. Clark testified that when he signed the notes he said to Mr. Mitchell: “That tubing is supposed to be real good used tubing, isn’t it, steel seamless tubing?” And that Mitchell answered, “Yes”. Further conversation according to Dr. Clark was as follows: “You know I don’t know anything about this oil business, and my superintendent tells me it is good stuff, and I am asldng you if it is good stuff.” To which Mitchell replied: “It is absolutely as good stuff as I ever saw; steel seamless tubing.” Mr. Mitchell, on the other hand, said on the witness-stand: “Dr. Clark wanted to give notes for it. Not a word was said about seamless tubing to my recollection. Not a word was said about tubing.” Mitchell also testified that “the average length of life for tubing, in wells in the Alamitos Heights is six months to twelve months, some of them longer”; saying also that there would be less wear on the tubing by friction of the rods in a straight hole than in a crooked well. It also appeared from testimony of one of the plaintiff’s witnesses, B. H. Graham, a dealer in oil-well supplies for 12 or 14 years, that the average life of new tubing in the Alamitos Heights field is approximately a year. This witness testified that “Reading” tubing is not used any more in the present day deep wells, “unless there were certain water conditions that would warrant them using it”. This “because they have seamless tubing now that we didn’t have four or five years ago”. There was evidence that “Reading” tubing is used in preference to steel where subterranean acid conditions prevail, and that it commands a price about 20 per cent higher than steel tubing. As will be seen from the above-quoted portion of Dr. Clark’s testimony,