
    J. W. Okey and G. W. Okey v. H. L. Moyers, Appellant.
    “Rock” Defined: Contract to drill well. Soapstone is “rook,’.’ within a contract to drill a well, and insert a certain sized pipe to rock, and another size in rock.
    
      Appeal from Boone District Court. — Hon. S. M. Weaver, Judge.
    Friday, October 10, 1902.
    Action for price of drilling well. Judgment for plaintiffs. The defendant appeals. —
    Affirmed.
    
      W. W. Goodykoontz for appellant.
    
      Dyer & Stevens for appellees.
   Ladd, C. J. —

The plaintiffs undertook to drill a well for defendant which should furnish a sufficient supply of water, and to insert therein “2 inch galvanized pipe to rock, and ljr inch galvanized pipe in rock.” Soapstone was struck 230 feet from the surface, and through that to a depth of 429 feet 1| inch casings were used. Is soapstone “rock,” within, the meaning of the contract? The court instructed that “by the word ‘rock,’ as here used, is meant the stratum or formation of stone or other fixed hard material underlaying and supporting the loose material of which the surface of the earth is ordinarily composed,” and allowed the jury to determine whether the last 199 feet was through rock, as thus defined. The evidence tended to show that in hardness it varied from a soapstone which crumbles when exposed to air to that of “nigger heads” found on the surface. In geology every layer which forms a portion of the solid crust of the earth is called rock, but in its popular acceptation the term embraces only the solid portions of the earth. Webster defines it as “a large concrete mass of stony material.” The Standard Dictionary: “Technically, a rock is a mixture of mineral substances, except when it is one species, in a bed or mass. The constituents of rock are mineral, although they may be organic in origin.” The Encyclopedia Brittanica, Yol. X: . “A rock may be defined as a mass of material matter composed of one or more, usually of several, kinds of minerals, having as a rule no definite external form, and liable to vary considerably in chemical composition.” The substance of these definitions is condensed, and included in the terse and accurate statement of the court. Soapstone is staetite, and is so called from its soapy feeling. It is defined by Webster as “a soft magnesium rock, having a soapy feeling, presenting grayish, green, brown, and whitish shades of color. It is a variety of talc, which consists of silica and magnesium. It forms extensive beds, and is quarried for fireplace and for coarse utensils.” It would seem such formation was within the definition of the court. If so, the appellant was not prejudiced by submitting whether it was to the jury; if not, the evidence was such as to authorize that body in concluding that the substance in which the 1¿ inch casing was placed was rock. The evidence warranted the finding that the well furnished a sufficient supply of water, and the criticism of the instructions is utterly without merit. — Aeeirmed.

Weaver, J. took no part.  