Chico Well Drilling Co. v. Givens

CURTIS, J.

Action brought to recover an amount alleged to be due the plaintiff for the drilling of a well upon defendants’ land and to foreclose a lien against said land for the cost of said well. The complaint is in two counts, one upon an express contract and the other is for the reasonable value of services rendered defendants in the drilling of said well. The trial court found for the defendants and plaintiff has appealed. The sole ground of appeal is that the evidence does not support the judgment. There is no dispute between the parties hereto as to their agreement. It was in writing and bore date of March 20, 1924, and provided for the drilling of said well for a stipulated price per foot. The two findings of the court which plaintiff claims do not find substantial support in the evidence are findings 3 and 4, which are as follows:

Finding 3: “ That thereafter plaintiff went in and upon the lands of said defendant, Samuel Givens, and partially drilled a well thereon, but did not drill same straight or plumb enough to permit the installation of a deep well

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turbine pump therein, as required by said contract. That in drilling said well plaintiff excavated large quantities of gravel from the lower levels of said well which resulted in the earth above such excavations caving in and around the casing in said well, and that such excavations and caving were due to the negligence of said plaintiff. That said plaintiff placed casing in said well, but did not install and perforate the same so that the water contained in the ground surrounding said easing could flow into said well. That said plaintiff never completed said well, but removed its drilling tools and outfit from the land of defendant, Samuel Givens, and abandoned the completion of same.” Finding 4: “That by reason of the failure of said plaintiff to drill and case said well in accordance with the requirements and terms of said contract, said well could not be used and was of no value to defendant, who was compelled to drill another well to supply water to his land, and that said plaintiff is not entitled to recover any payment therefor from said defendants, or any of them.”

The written contract was executed immediately preceding the acts of the plaintiff which are set forth in said findings 3 and 4. The contract provided, among other things, that “Above well to be drilled straight and plumb enough to permit the installation of a deep well turbine pump.” As to whether the well drilled by the plaintiff complied with this provision of the contract the evidence presents a sharp conflict. This is admitted to be so by the plaintiff, but it claims that all of the experts called by the defendants, and who testified that a deep well, or turbine pump could not be installed in the well drilled by the plaintiff with satisfactory results, also stated that they had never observed a deep well pump installed in a well not plumb, while plaintiff’s witnesses, who testified that a turbine pump would work satisfactorily in a well not plumb, all testified from their own personal observations. Plaintiff contends that under these circumstances the testimony of defendants’ witnesses was valueless and should have been rejected by the trial court, and that this court cannot give to it any consideration. Plaintiff concedes that the question whether a deep well pump would work satisfactorily in a slanting well, or a well not plumb, was one to be determined by expert testimony. All of the witnesses