Kerfoot v. Schutz

LAWLOR, J.

Plaintiffs appeal from a judgment in favor of defendant. The action was for damages on account of the alleged failure of the defendant to perform a contract for the drilling of a water well.

On the eighteenth day of August, 1914, plaintiffs were the owners of certain land which they desired to bring under cultivation for horticultural purposes by the development of water wells. ' At that time the defendant had been engaged in the business of drilling water wells' in Kern County for a number of years. With a view to carrying out the plans of the plaintiffs relating to the improvement of the land mentioned, the defendant entered into a contract in writing with the plaintiffs for the drilling of one well, which contract is set forth as an exhibit attached to the complaint in this action. The agreement shows that it is one by which defendant agrees to drill a water well upon land belonging to plaintiffs and to sink such well in a workmanlike manner. It was stipulated that plaintiffs might make tests to determine the water producing capacity of the well, and a limited time was fixed for the completion of the work.

The only specification óf breach upon which appellants rely in their printed brief is alleged in the complaint as follows: “The said well for the depth of about 115 feet is crooked, and the casing inserted therein varies from a perpendicular position to such an extent that it is impossible to insert pumping machinery in said well for the purpose of pumping water therefrom.” On this .appeal it is contended (1) that the findings of fact made by the trial court

[574]

are outside of the issues, and (2) that there is no evidence to support the findings. Findings VIII and XII are respectively that" the manner in which the defendant filled and tamped the earth in digging the well “did not bring about or cause the bends or crooks in the casing of said well,” and “that the careless and reckless acts of plaintiffs ... in installing and removing said ■ pump were the sole cause of such bends and twists in the casing in said well.”

[1]

It was not enough to meet the burden of proof resting upon plaintiffs to show merely that after a certain lapse of time following the completion of defendant’s work the well was not in serviceable condition. It was essential that plaintiffs should show this condition to be the result of a breach by the defendant of the terms of his contract. The allegation of the complaint quoted above, upon which plaintiffs rely, was denied by the defendant. The issue was thus joined as to whether there were any crooks or bends in the well casing, and if there were, whether they were caused hy an unworkmanlike construction of the well.