Jennings v. Azhderian

BARNARD, P. J. This is an action for the reasonable value of work, labor and materials furnished by the plaintiffs in drilling a well for the defendants.

The defendants owned a section of virgin land in western Fresno County, which had never been cultivated. In January 1952, the parties entered into an oral agreement under which the plaintiffs were to drill three water wells on defendants’ property and the defendants were to pay $4.00 a foot. This price included the installation of the casing and the placing of certain gravel, which items were to be furnished by the defendants. The plaintiffs drilled, graveled and eased Well No. 1 for which the defendants paid on its completion, at a depth of 1,800 feet. The plaintiffs then started to drill Well No. 2 at a point about three-fourths of a mile from Well No. 1. This well was drilled to a depth of about 1,400 feet when work was abandoned, and the well was never completed. The [375]defendants refused to pay for the work done and the plaintiffs brought this action. At the trial the defendants took the position that there was an express contract between the parties for the drilling, casing and graveling of the well in issue, and that plaintiffs had failed to substantially perform the contract since they had not cased or graveled the well. It was also contended that the plaintiffs had abandoned the work because the well was so crooked that it was impossible to insert casing therein, and that the defendants had not consented to such abandonment. The court found in favor of the plaintiffs, finding that the reasonable value of the work done was $3,322. Judgment was entered for that amount, and the defendants have appealed.

The appellants contend that the evidence established an express contract for the drilling, casing and graveling of Well No. 2; that there was no substantial performance by respondents since the well was not cased and graveled; that this express contract cannot be converted into an implied contract, so as to permit recovery without full performance, by the mere fact that the hole was claimed to be dry; that there was no evidence justifying the abandonment of the well on the ground that it would not produce sufficient water, since the evidence shows that no real test of the well could be made because it was never straight enough to case or to insert a pump for the purpose of testing it; and that the appellants never consented to the abandonment of the work.

While there was an express contract for the drilling of a well at a fixed price per foot there was no agreement as to how deep drilling should go, and no agreement concerning the successful production of water or what should be done in case it should appear undesirable to further continue the drilling operations. During the trial appellants’ counsel told the court “We do not contend that the plaintiffs were bound to produce a well that gave us water,’’ and that their contention was that the plaintiffs could not abandon the work without the consent of the defendants. Since there was no express contract with respect to these matters they presented questions of fact for the trial court. The controlling questions here are as to whether the evidence supports the findings and conclusions to the effect that the circumstances were such as to justify the respondents in their failure to continue with the work, and that the work ceased with the consent or acquiesenee of the appellants.