Blair v. Brownstone Oil & Refining Co.

[472]

SHAW, J.

The complaint alleged that on October 3, 1908, plaintiff and defendant entered into a contract whereby the former, for a stipulated price per foot of depth, agreed to shut off the water, drill, construct and complete for defendant its oil well No. 5 from its then depth to a depth of 1,500 feet. By the express terms of this agreement defendant was to “furnish the derrick and all machinery, tools, cordage, lights, water, fuel, casing, casing-shoes, tubing and rods necessary for the deepening and drilling of the said well No. 5 from its present depth to a depth of 1,500 feet. ’ ’ It was further alleged that, on October 6th, plaintiff, pursuant to the terms of the contract, commenced work on the well and he and his employees performed seventy-nine days’ labor in the prosecution of the work; that plaintiff was unable to deepen the well and complete the contract in accordance with the terms thereof by reason of the fact that defendant failed and refused to furnish plaintiff with the necessary and proper tools for the performance of the work; that had said defendant furnished the necessary and proper tools in accordance with the agreement, and which it had neglected and refused to furnish plaintiff, the latter could and would have been able to have drilled the well to the depth of 1,500 feet as required by the contract; that by reason of defendant’s said failure to furnish the necessary tools plaintiff was prevented from performing the work, to his damage in the sum of $1,912.65. There is set out in the complaint a second cause of action, whereby plaintiff sues for the value of the work, labor, services and materials furnished defendant, the value of which is alleged to be the sum of $1,912.65. The answer denied the making of the contract, as well as other material allegations of the complaint. 'It also, as a separate defense, alleged an oral understanding and agreement with plaintiff, whereby said plaintiff and defendant settled and compromised all claims and demands then existing between plaintiff and defendant by reason of any work theretofore done and performed by plaintiff for defendant.

Judgment went for defendant, from which, and an order denying his motion for a new trial, plaintiff appeals.

The court found the contract was made as alleged and that on October 6th, plaintiff entered upon the performance of the covenants on his part therein contained, and expended the