
    Charles Hagadorn, Appellant, v. Miles B. McNair and Philetus W. Green, Respondents.
    Fourth Department,
    December, 1905.
    Contract to drive well—when failure of plaintiff to show performance excused because of neglect of defendant to test well."
    When the contract of the plaintiff to drive a well, as modified by the parties, provides in substance that the plaintiff is not to be paid until, on a test of the well by the defendant, it produces a certain quantity of water daily, which test is to be made by the defendant within thirty days after the completion of work by the plaintiff, and that, if the quantity of water be insufficient, plaintiff shall be allowed to bore deeper, it is error to set aside a verdict in plaintiff’s favor because of his failure to-prove that the required quantity of water was produced, when it is shown that the defendant neglected to test the well within thirty days as required, and did not notify the plaintiff of any lack in the quantity of water so that he had an opportunity to bore deeper.
    Appeal by the plaintiff, Charles Hagadorn, from an order of the County Court of Livingston county, entered in the office of the clerk of the county of Livingston on the 29th day of May, 1905, setting aside the verdict of a jury theretofore rendered in favor of the plaintiff. x .
    
      C. W. Gamble, for the appellant.
    
      J. M. Hastings, tor the respondents.
   Spring, J.:

The parties entered into a written agreement on the 11th day Of April, 1903, whereby the plaintiff agreed to drill a well for. the defendants on the farm of the .defendant McNair. He. was to receive one dollar and twenty-five cents per foot if cased and one dollar where no casing' was used. There was, however, to be no charge until the well had “ been thoroughly tested and found to - produce 20 barrels of water in each twenty-four hours.”.

The agreement further provided that the defendants were to furnish a suitable pump for said well and second party (the plaintiff) agrees to properly place the. same in said well in working ' order.” ■ In pursuance of this agreement the plaintiff drilled the well fiftyfwo feet in. depth, supposing it would produce the required quantity of water, and moved the tools away about May first. On a subsequent, test the well failed to produce water sufficient to comply with the agreement. . "

In October of that year the parties made an oral agreement. They vary somewhat in regard to .its term's, but the disagreement is not substantial. Both agree that the. defendants were to test the well and to accept or.reject it within, thirty days after its completion ; and, if not accepted,'the plaintiff was to “ come back and dig it deeper.” The price in the old contract continued, and. was to cover the entire depth drilled. The plaintiff- drilled to a depth of 108 feet, made a ■ preliminary, although not certain test, and believed, .there was ample water according to the agreement. This was the latter part of October, and he at once notified the defendants and told Mr. McNair to put in his pump and test promptly to prevent the loose rock-falling in the hole.

The defendants- put a pump in place, but made no test at all during the thirty days. The plaintiff called their attention to the fact that the time for making the. test would expire in thirty days, but no test in fact was made until May or June following.

On these facts the jury rendered a verdict for the plaintiff. The trial judge granted a new trial as matter of law, as we gather from his opinion, holding that performance was a condition precedent to' the right to recover. The evidence shows that the well did not produce twenty barrels of water, and for that reason the verdict was set aside.

The plaintiff, of course, before he can maintain his action' to recover on the contract, must establish that he has fulfilled the agreement, unless the defendants, through failure or a breach on their part, have relieved the plaintiff of this burden imposed upon him. The purpose of the agreement was to secure to the defendants a well producing daily twenty barrels. The plaintiff was to receive no compensation unless he met this condition. It was a venture for him, and in order that in the end he might be compensated for the labor and time expended, certain provisions of the agreement inured to his benéfit. The defendants were to accept or reject the well within thirty days after they were notified of its completion. They were not to delay their test, indefinitely and thus prevent the plaintiff from knowing whether he had failed or won in his experiment. The vice of the written agreement was that no time for the test was designated and the plaintiff insisted on fixing the limitation within thirty days as all parties testified when the new arrangement was made.- Concededly the test was not made within the stipulated period, and, in fact, not until after judgment was recovered by the plaintiff in Justice’s Court in this action. Beyond this, there was another significant variation in the oral agreement. If the defendants did not accept the well, then the plaintiff was to make another experiment and drill deeper. After the second drilling the well produced more water than at the first effort and a continuation of the drilling might have discovered the required quantity of water.

These provisions .were valuable to the plaintiff and were saving conditions to enable him to make the fullest endeavor to secure a twenty-barrel well in order that he might obtain the money he bad earned. The defendants neither accepted nor rejected the well. They made no test; they never gave him the opportunity to drill deeper.

The charge of the court is not contained in the record and we infer it was.satisfactory to the parties. At any rate, we must assume that the jury found with the plaintiff- wherever' there was dispute in the testimony and also that the defendants were not excused from making the test and accepting or rejecting the well within the prescribed period so that the plaintiff might try again in Ms undertaking. While the gravamen of the agreement was to secure .-the desired well, yet the strict obligation imposed .upon the plaintiff must bé construed in the light of the burdens accepted by the defendants. They "have slumbered on their rights and have made what might have proved a fruitless experiment a valuable one to the plaintiff. o

The order, should be reversed;

All concurred.

Order reversed, with costs, and motion denied.'  