Appeal from Judgment on Report of Referee.
Action by John H. Foley against the Utica Sanitary Milk Company. Judgment for plaintiff, and he appeals. Reversed, and new trial ordered.
P. H. Fitzgerald, for appellant.
James H. Merwin, for respondent.
Argued before McLENNAN, P. J., and SPRING, WILLIAMS, KRUSE, and ROBSON, JJ.
The action is on a written agreement consisting of a proposal by the plaintiff dated April 7, 1908, and an acceptance by the defendant. By the terms of the proposal the plaintiff agreed to drill a six-inch well on the premises of the defendant, and it contained the following clauses:
" I will test this well every four to six feet and show you the amount of water. Price $2.50 per foot, depth to be decided after each test by you not to exceed 500 feet."
The plaintiff commenced work on the 13th of April, and on the 15th was down 40 feet and in the rock. The father of the plaintiff, who was then doing the work, reported to the manager of the defendant, [115 N.Y.S. 419] and was asked if he had discovered water, and he said " none to speak of" only " enough to wet the drill." The defendant expressed surprise, stating that he expected to get water before the rock was reached, whereupon, as the manager testified, the plaintiff responded:
" ‘ Well, if you insist on my pulling up the pipe to show you, I'll have to lay my men off, and go to the steam engine boiler works and get a rigging that will cost a lot of money.’ I said I had no desire to put him to any expense, and, if there wasn't any more water there than he represented, to go on."
The president of the defendant participated in this conversation, and they directed the plaintiff to proceed with the drilling. The work progressed near the office of the company, and the manager saw the father of the plaintiff each day, but there was no talk as to the well, and no suggestion as to any further test until the well had reached the depth of 100 feet, when another conference was had and the president of the defendant investigated another well which had been drilled by the plaintiff to the depth of 250 feet in the immediate neighborhood for another company, and, after this investigation, ordered the plaintiff to proceed with the work, but not to go below 300 feet, which he did, reaching the depth stated without finding water, and the defendant then caused him to stop the drilling.
The manager testified, and it is not controverted, that, when the determination was made to continue the drilling after it was down 100 feet, the father of the plaintiff agreed, if no water was found in going down the stipulated distance, he would drill another well to the rock without charge, and he fulfilled this promise. The new well, close to the first one, was drilled to the rock about 20 feet, and water was discovered in the quicksand, but it could not be separated in the pipe from the sand, so the project of using the well was not feasible. Later the defendant caused a well six feet in diameter to be dug to the depth of about 19 feet, surrounding the pipes which were left after the plaintiff's tools and machinery had been removed. The quicksand was held back by planks running down to the bottom of the well and held in place by circular ribs, so that the well was cribbed, as the expression is. This well produced about 2,400 gallons of water daily.
The referee allowed the plaintiff to recover for 22 feet, the maximum distance to the rock, but rejected the major part of his claim. The contention of the defendant is, and it was sustained by the referee, that the plaintiff could not recover for the reason that he failed to comply with the provision in the agreement requiring him to test the well " every four to six feet, and show you [the defendant] the amount of water." ; In the light of the circumstances and the conduct of the parties as disclosed in the record, I think too rigid an enforcement of this clause has been applied. The plaintiff testified that, before making his proposal, he had the following conversation with Hatfield, the manager of the defendant:
" He (Hatfield) said in digging the foundation they got into quicksand and a big body of water. He wanted to know if I would put down a drilled well and get that water. I told him I could get water in clay, gravel, hardpan, or rock, but quicksand would fill up as fast as we could take it out. He said: ‘ Very well,’ he would ‘ see what he could do,’ and asked me the price, and I [115 N.Y.S. 420] told him $2.50 per foot, and that finished the conversation. He said did I ever guarantee water, and I said that I guaranteed ...