Sweezy v. . O'Rourke , 226 N.Y. 378 ( 1919 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] In determining the rights of the parties it is necessary to answer two questions:

1. Was it the intention of the parties to the contract that nothing should be paid for drilling the well unless fresh water was reached?

That is a question of law to be determined by the court from the contract and the surrounding circumstances.

2. Did the contractor drill the well until the pipe reachedwater-bearing gravel?

That is a question of fact to be submitted to a jury.

Prior to making the contract fresh water had been obtained through a well driven to a depth of about two hundred feet on property in the vicinity of the defendant's property. We may assume that the defendant's purpose in entering into the contract was to obtain water for drinking and general domestic uses. The parties undoubtedly hoped and expected to obtain fresh water. The hope and expectation was based upon the fact that fresh water had been obtained in the vicinity by driving a well about two hundred feet deep and also upon the commonly accepted belief that water obtained from a stratum of gravel will be potable. In drilling a well for a special purpose, particularly when it is contemplated that it must be continued far below the surface of the ground, there is a material element of chance and uncertainty whether the result will be satisfactory for the purpose designed.

A person who contracts with another to do work is entitled to the prescribed compensation therefor. If the compensation is wholly dependent upon the accomplishment of a particular result the person for whom the work is done should express such unusual provision in terms so clear as not to be misunderstood.

The contract in this case is simple in its terms and provides for drilling a well of a specified diameter at a fixed price per foot and for furnishing all material and equipment therefor and for continuing the same until the pipe "has reached waterbearing gravel." The proposed contract or offer was accepted on behalf of the defendant, upon condition that the work be prosecuted without delay. Which of the parties assumed the risk of obtaining in such stratum of gravel the kind and quality of water desired by the defendant?

The word "well" implies water so that a contract to dig a well commonly places upon the welldigger the duty of furnishing water, but if water is found in substantial amount and no specification is contained in the contract as to the quantity, the landowner must pay the contract price whether the quantity is satisfactory or not. (Omaha Consolidated Vinegar Co. v. Burns,49 Neb. 229.)

In Electric Lighting Company v. Elder Brothers (115 Ala. 138), where a contract for boring an artesian well was made which provided its dimensions and capacity and further provided that "The water flowing from said well is to be deep strata water, and no strainer will be placed to obtain flow from intermediate or intervening strata, as water from that source is likely to be of such quality as is not adapted to the use" for which the well is bored, it was held that the party for whom the well is bored assumes the risk that the deep strata water will be of a suitable quality for his purpose.

In American Well Works v. Rivers (36 Fed. Rep. 880) it was held that a written contract by which plaintiff agrees to sink an artesian well for defendant supplying a given quantity of water, does not require that the water should be potable and fit for washing and for making steam though plaintiff knew the defendant was a hotel-keeper and desired water of that character for hotel purposes. (See, also, Farnum on Waters Water Rights, vol. 2, pages 2748, 2749; Blum v. Brown, 11 Texas Civil Appeals, 463; Littrell v. Wilcox, 11 Mont. 77; Miller v.Layne Bowler Co., 151 S.W. Rep. 341.)

A contract to dig a well furnishes great opportunities for dispute between the parties. A guaranty of the kind and quality of the water to be obtained would so materially affect the risk on the part of the welldigger that it would necessarily materially increase the price to be charged per foot for digging the well. So material and important a consideration should not be left to inference. It is not fairly inferred from the contract before us. The defendant apparently relied upon the probability that water found in a strata of gravel would be so cleansed and purified as to be potable. If the defendant had not been satisfied with the offer as it was written she would have included in her acceptance thereof a further condition that the water to be furnished from the well must be fresh water. That the contract was considered with reference to protecting the defendant's rights is shown in the fact that it contained a proviso in regard to the same being performed without delay. The record includes a correspondence between the parties which commenced when it was found that water-bearing gravel was not reached at about two hundred feet depth, and continued until after plaintiff's assignor claimed that he had reached water-bearing gravel, put in the screen and asserted that he had completed his contract. Each of the parties claims that the correspondence is material to sustain his contention, but it is not of sufficient importance to justify including a statement thereof herein.

We think that the contractor was compelled to drill a well until the pipe reached water-bearing gravel, but that he did not warrant that the water to be obtained from the gravel when reached would be fresh, potable and fit for domestic purposes.

We agree with the Appellate Division that the judgment of the Trial Term should be reversed, not, however, for the reason stated by it, but because the question as to whether the plaintiff reached water-bearing gravel is one of fact that could not be decided by the court except on motion of the defendant as well as of the plaintiff. A new trial of the action should be granted.

The judgment should be modified by striking therefrom the provision dismissing the complaint, and inserting in lieu thereof a provision granting a new trial, and as thus modified affirmed, with costs to abide the event.

COLLIN, CUDDEBACK, HOGAN, McLAUGHLIN, CRANE and ANDREWS, JJ., concur.

Judgment accordingly.