Schlitz v. Akers

WASTE, C. J.

Action brought by plaintiff to recover the sum of $7,550 alleged to be due from defendants under the terms of a written contract for the drilling of oil-wells. Defendants defended on the ground that plaintiff did not substantially perform his part of the contract, and that therefore no recovery could be had. Plaintiff’s excuse for the alleged nonperformance is that defendants first breached the contract. The case was tried before the court without a jury, resulting in a judgment in plaintiff’s favor in the sum of $7,200. From this judgment defendants prosecute this appeal.

The contract involved herein provides, among other things, that plaintiff agreed to drill four oil-wells for defendants, keeping his two portable drilling rigs in continuous operation until each well is drilled to a depth of 500 feet, and if necessary and feasible to a greater depth; that plaintiff is to furnish all labor, fuel, water, tools and equipment, except that defendants agree to furnish “all casing, also cement and all tools and materials whatsoever required in cementing off water”; that the compensation of plaintiff for such services shall be at the rate of $3 per foot for the first 600 feet, seventy-five per cent of which shall be paid at the completion of each 100 feet of drilling, the balance upon completion; that in the event [and this is an important feature of the contract] “rock is encountered in drilling any of said wells,” plaintiff agrees to drill one foot through the same without extra compensation, but beyond

[492]

that defendants agree to pay $75 per day for each day of nine hours required in drilling through “all rock formations”; that if plaintiff finds that it is not feasible to drill through rock formations, he may abandon the well and drill another, plaintiff to receive compensation for the abandoned well on the scale set forth above; that defendants agree to pay to plaintiff $25 per day for each day of nine hours lost by plaintiff on account of failure of defendants to supply easing or other materials; that defendants agree to deposit with the First National Bank of Delano the sum of $3,000 as a cash bond to insure payment of all sums due plaintiff, the bank to make payments from said sum to plaintiff upon presentation of a certificate showing the sum to be due; that when such deposit is reduced to $1,000 defendants agree to deposit a further sum of $2,000 for the same purpose, and to continue such deposits so that at all times there shall be on hand a sum sufficient to meet all plaintiff’s demands under the contract.