McPherson v. San Joaquin County

CHIPMAN, C. Action upon contract. The complaint alleges that plaintiff and defendant entered into a written contract by which plaintiff agreed to bore, for the use of defendant, “a well for flowing water and gas in accordance with the specifications prepared therefor.” Plaintiff agreed to furnish all necessary tools and labor for the work, and bore the well to the depth of two thousand feet, unless defendant direct the discontinuance of the work. ’ ’ The size of the bore of the well was to be twelve inches, carried down to the greatest possible depth. Where changes were found necessary in the size of the bore, in going down, defendant was to have the right to decide as to such changes. The contract provided “that the casing to be used in said well should be furnished by the said party of the first part [defendant], .... and shall be selected and designated by the said party of the first part.” Usual covenants were given by plaintiff to make the work first-class in all respects. Plaintiff was to keep an accurate account of developments in striking water or gas as the work progressed, and report fully to defendant the results obtained. Plaintiff was to be paid at the rate of $2.25 per foot for the first one thousand feet, $2.50 per foot for the next five hundred feet, and an increased amount per foot as the well was deepened. The contract also further provided: “The total number of feet of said well to be bored being two thousand feet, unless a sufficient flow of gas shall be found at a lesser depth, or work be sooner suspended by” defendant. A provision required plaintiff to make a statement to defendant on the first of each month of the number of feet completed the preceding month, and, if found correct, the account should be approved by defendant, and a warrant issued to plaintiff for the amount due, less twenty-five per cent reserved until full completion of the contract. Pull and detailed specifications were made part of the contract. In the specifications is the provision following: “The casing to be furnished to the contractor, delivered on the grounds; he to place the same in position.....All casing and steel shoes for the well will be furnished by the board of supervisors.” It was provided that, if the work should be discontinued [259]by defendant, plaintiff was to “be entitled to the full payment of such portion of the work as has been satisfactorily completed, at rates that have been agreed upon in the contract”; defendant reserving the right to order the work stopped at any time. The complaint alleges “that plaintiff duly performed all the conditions on his part to be performed under said contract until said well was bored and completed to- a depth of eleven hundred feet,’’ about July 10, 1897; “ . . . . that the casing selected, designated and furnished by said defendant to plaintiff to be used in said well was of such inferior quality that on said day said casing, without any fault on the part of plaintiff, and while plaintiff was in the due performance of his part of said contract, failed, collapsed, gave way and obtruded itself into said well and stopped up said well at a point about one thousand feet in depth in said well to such an extent that it was impracticable and impossible for plaintiff to further proceed with the boring and completion of said well; that, prior to the time that plaintiff had used said casing which failed .... and obtruded itself into said well as aforesaid, said plaintiff had warned said defendant and its officers and agents that said casing was insufficient and unfit to be used in. said well, and had protested against being required to use the same in said well, but said defendant had required said plaintiff to proceed to use said casing in said well, and had refused to procure proper casing to be used in said well.” At this point in the complaint it is alleged that, after the casing collapsed as stated above, plaintiff offered to bore a new well, without profit to him, to the depth of one thousand feet, if defendant would furnish casing and pay the actual expense of boring the well, and from that point plaintiff would proceed to complete the new well under the terms of the contract. This clause was stricken - out on motion. The complaint then alleges that the sum of $2,500 was due for boring the well to the depth of eleven hundred feet, no part of which has been paid, except $1,875.01, leaving due the sum of $624.99. Allegations are made showing that the claim was duly presented, and was rejected by the supervisors. A second count alleges the sum of $250 to be due for extra work caused by and on account of the improper casing furnished plaintiff. A further claim is also made of $500 damages for being prevented from com