Sears v. Whiston

BARNARD, P. J. The plaintiff brought this action against the two defendants, who are father and son, to recover a balance claimed to be due upon three claims for labor alleged to have been performed by plaintiff’s assignors for and at the request of the defendants. The labor in question was performed in connection with the drilling of an oil well on a lease owned or controlled by the defendant Raleigh Whiston. The defendant H. L. Whiston defaulted and the defendant Raleigh Whiston answered, and the trial proceeded upon the issues thus raised. A number of witnesses testified at the trial that at the time the plaintiff’s assignors went to work the defendant H. L. Whiston agreed with them that he would pay them $2 a day in cash as the work progressed and that in the event a producing oil well was brought in they would be paid the balance of the regular wages which Whiston had theretofore been paying. The main contention of the defendant Raleigh Whiston at the trial was that the debt, if any, was that of his son, H. L. Whiston, it being claimed that he had entered into a contract with his. son whereby he was to pay the son [684]$10,000 and tbe son was to pay for all material and labor used in drilling the well. The court found in all respects in favor of the plaintiff and entered judgment in his favor for $604.37, from which judgment the defendant Raleigh Whiston has appealed.

The first point raised is that a finding to the effect that H. L. Whiston was the agent of R. Whiston and that these services were rendered for the benefit of R. Whiston, is not sustained by the evidence. While both father and son testified to the existence of a contract between them whereby the son was to furnish all labor and material and the father was to pay him $10,000 for drilling the well, their testimony was none too convincing. The father testified that the contract was not in writing; that he did not know when it was made; that no one was present when it was made except himself and his son; that he agreed to pay his son $10,000; that he had paid him in full; that this amount was not all paid direct to his son but part of it was paid for outstanding bills; that he had not figured out what part he had paid in outstanding bills and what part he had paid to his son; that while he did not owe his son anything, the amount he had paid did not amount to exactly $10,000; and that he owned the drilling outfit and other equipment used in drilling this well. The son testified that he was to furnish the labor and material, while his father was to furnish the derrick and other equijiment and pay him $10,000 for drilling the well; that he had no credit and the arrangements for securing the material which he had agreed to furnish were in fact made by his father; and that this material was charged to and paid for by his father. His testimony was impeached by evidence of a statement he had previously made, under oath, to the effect that at this time he was working for his father under an arrangement whereby his father paid the living expenses of his family and that he had no source of income from salary or otherwise from this well. There was also evidence that the father paid many of the bills for labor, including what had previously been paid to respondent’s assignors; that on at least one occasion he gave instructions to these laborers as to how the work should be done; that he told one of the respondent’s assignors to go to the lease and go to work; that he told all of respondent’s assignors, as a group, that