Bigelow v. Garwitz

Dwight, P. J.

The order seems to ns to have been properly made on grounds other than those assigned by the court below in a brief memorandum accompanying its decision. The action was for the contract price of drilling a well, and furnishing the necessary casing, piping, and other fittings therefor. The complaint alleged an oral contract, which fixed the price per foot of the drilling, and of each of the necessary fittings, but left the depth to which the well should be sunk to he thereafter decided and directed by the defendant. It further alleged that when the drilling had proceeded to the depth of 121 feet the defendant decided and directed that it should not go any further, whereupon the plaintiff furnished and put in all the necessary fittings for the well at that depth, and that the price of all the labor and material supplied amounted, at the contract price, to the sum of $249.80, no part of which had been paid, and which the plaintiff claimed to recover. The answer averred a contract by which the plaintiff should drill till he procured a sufficient supply of water for all domestic purposes and for the stock then on defendant’s farm; and that .when such a supply of water .was obtained the plaintiff should be paid at the prices stated in the complaint, but that until such supply of water was obtained he should receive no pay either for work done or material furnished. And this w.as the issue tried and submitted to the jury, with the variation that the plaintiff was permitted to give evidence to the effect that when the work was stopped he agreed that, if the supply of water did not prove adequate, he would return and drill the well to a greater depth. There was no dispute as to the amount earned by the plaintiff if the contract was as he alleged, viz., $249.80, and there was an undisputed offset due to the defendant of $25 for keeping the plaintiff’s horse. Accordingly the court charged the jury that, if the contract was as alleged by the plaintiff, he was entitled to a verdict for the sum of $224.80, whereas, if the contract was as alleged by the defendant, the latter was entitled to a verdict. The jury rendered their verdict in favor of the plaintiff for $100. It was properly set aside. It was in direct contravention of the instructions of the court, and was manifestly the result of a compromise. It. was a verdict which the jury had no right to render, and which the court might well have set aside on its own motion. Without considering, therefore, the qu- stiun of supposed error in the admission of evidence as to the terms of the contract, .we are quite satisfied to affirm the order granting a new trial on the ground that the verdict *941 was in clear violation of the unquestioned law of the case. Order granting a new trial affirmed, with costs of this appeal to abide the event of the action. All concur.