Barrett v. Austin

California Supreme Court Sep 1, 1892 No. No. 14,753Published

Before: Belcher

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Holding. The court held that the plaintiff was not justified in terminating the contract due to the defendant's accidental equipment failure, as such an event constituted an 'unavoidable hindrance' under the contract. Consequently, the plaintiff had no cause of action for damages, and the defendant was not entitled to payment for partial performance because the contract conditions for payment had not been met.

Issues

Whether the accidental breakage of boring equipment constitutes an 'unavoidable hindrance' under the contract, justifying the plaintiff's refusal to continue performance.
Whether the plaintiff is entitled to damages for breach of contract when the defendant stopped work due to the plaintiff's failure to provide contractually required supplies.
Whether the defendant is entitled to payment for partial performance when the contract conditions for payment were not met.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“It is a matter of common knowledge that tools and machinery often unexpectedly break, and that augers used in boring wells frequently break in the ground, without any carelessness or fault on the part of the parties using them.”

“The covenants were mutual, and, when the plaintiff refused to furnish any more supplies, the defendant was justified, if he chose to do so, in stopping the work, but his stopping did not give the plaintiff any cause of action for damages.”

“Our conclusion is that when the action was commenced the plaintiff had no cause of action against the defendant for the materials furnished, and the defendant none against the plaintiff for the work then done.”

Synopsis

Contract to Bore Well—Abandonment of Work.—In an action on a contract for boring a well on plaintiff’s land it appeared that he agreed to furnish the casing, fuel, and board for defendant and his men “at his own expense,” and pay a certain sum when the well was completed. Defendant agreed to continue boring the well, “barring bad weather or other unavoidable hindrances,” till a certain depth was reached or impenetrable rock was encountered. When about half the agreed depth was reached, defendant’s auger broke near the lower end, and became fastened in the well. Defendant claimed he could remove the broken piece, and, after striving unsuccessfully for three weeks, plaintiff refused to furnish further fuel and board, and defendant abandoned the work. Held, that plaintiff was not entitled to recover for the value of supplies furnished defendant to the date the work was abandoned, since by the contract he was not released from furnishing them while boring was prevented by “unavoidable hindrances.”

Contract to Bore Well—Abandonment of Work.—In such action defendant is not entitled to recover on a cross-complaint for the number of feet bored, at the contract price, since he was not prevented by plaintiff, nor by encountering impenetrable rock, from performing his contract.

BELCHER, C. This is an action to recover damages for breach of contract. It is alleged in the complaint that on the fourth day of February, 1890, plaintiff and defendant entered into a written contract, a copy of which is set out, for the boring of a well on plaintiff’s land; that plaintiff complied with all the conditions of the contract to be performed on his part, and in pursuance thereof furnished the materials and supplies provided for of the value of $1,000; and the defendant failed and refused to comply with any of the conditions to be performed on his part, and that, by reason of such failure and refusal, plaintiff had been damaged in the sum of $1,000, for which he asked judgment. By the contract the plaintiff bound himself “to furnish all the tubing and casing at his own expense; also all necessary fuel for the use of the engine, and all the casing clay needed in the boring of a certain well, now commenced and sunk about one hundred and forty feet, on the following described land,” etc.; “also to board and furnish house room for the men— three in number—employed in boring said well”;'“also to pay to the party of the second part (defendant) seventy cents per foot in depth, commencing from the top of the ground, for each and every foot in depth of said well, and to make said payment in full, as aforesaid, at the completion and cessation of the boring of said well.” And the defendant bound himself “-to continue the boring of said well, commencing on the eleventh day of February instant, barring bad weather or other unavoidable hindrances, until the depth of one thousand feet shall have been secured,” provided that if a satisfactory flow of water should be secured, or impenetrable rock be encountered, before the depth of one thousand feet should be reached, then the boring was to cease, and the defendant was to be paid for the work done, as before provided. By his answer, the defendant admitted the execution of the contract, but denied that plaintiff had complied with all the [553]conditions thereof as alleged; and also denied that he had sustained damages in the sum of $1,000, or in any sum, by reason of any failure, neglect, or refusal on the part of defendant to perform the conditions of the contract to be by him performed; and alleged that plaintiff was the party in default, and by his own acts had prevented the completion of the work. Defendant also filed a cross-complaint, in which he set up the contract, and alleged that under and in pursuance of its terms he commenced boring the well on the eleventh day of February, 1890; that he had at the place of performance all necessary machinery and assistance for the full execution and completion thereof; that he steadily and industriously continued the work until the ninth day of April, 1890, when the plaintiff failed and refused to furnish any more fuel for the engine or board for the men; and that by reason of such failure and refusal he was then, and ever since had been, prevented from proceeding and fully completing the work required of him by the terms of the contract, although he was, and at all times since had been, ready, willing and able to perform all the conditions required to be kept and performed by him; that, in accordance with the terms of the contract, he bored the well to a depth of five hundred and sixty-three feet, and at the request of plaintiff furnished and used therein thirty-four feet of casing of the value of $15.30, and loaned to the plaintiff $2.50; that there was due to defendant from plaintiff, for the boring done, the easing furnished, and the money loaned, the sum of $411.90, for which he prayed judgment. At the trial it was proved, without contradiction, that the defendant commenced boring the well on the 11th of February, and continued the work a little more than a month, when his boring pipe and auger broke near the lower end thereof. He then tried to remove the broken pieces, and to that end worked diligently until the 9th of April. Up to that time the plaintiff furnished fuel for the engine and board for the men, but he then refused to furnish them any longer. The plaintiff testified: “The boring was stopped by reason of his boring pipe breaking off and leaving the auger at the bottom of the well. Defendant worked about two or three weeks trying to get the auger out, .... but he never succeeded in getting it out, and finally I quit, because I never agreed to dig his tools out, if

Barrett v. Austin

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