
    BEGGS OIL & GAS CO. v. BOND et al.
    No. 20005.
    Opinion Filed May 12, 1931.
    Rehearing Denied July 28, 1931.
    Carroll & Whipple, for plaintiff in error.
    G. C. Spillers, for defendants in error.
   HEFNER, J.

This is an action by Oscar Bond and Gertrude Bond, partners, against Beggs Oil & Gas Company, to recover upon a contract for services performed and material furnished by plaintiffs in shooting an oil well belonging to defendant and to foreclose a mechanic’s lien.

Plaintiffs were to use 200 quarts of nitroglycerin in making the shot. The defendant in its answer admits the shot was made by plaintiffs, but pleads that the substance used was not nitroglycerin and that the. well was destroyed by reason of the substance used. A jury was empaneled, and at the close of all the evidence the trial court, on motion of plaintiffs, directed a verdict in their favor.

Defendant contends that 'the evidence offered by it was sufficient to take the case to the jury. With this contention we are inclined to agree. Plaintiffs testified that the substance used in shooting the well was in regular nitroglycerin containers and that it was nitroglycerin. Defendant offered evidence proving that the substance used was a thin, white, watery substance with a mixture of rust and that it did not perform as nitroglycerin usually does; that nitroglycerin is a thick liquid material, whitish in color with a yellow cast. Defendant further established that the peculiar color of this substance was called to plaintiff’s attention when he poured the same, from the cans to the shells which were placed in the bottom of the well. This evidence was sufficient to take the ease to the jury. If the substance used was not nitroglycerin and plaintiff’s attention was called to this fact and he still persisted in using it, and the defendant suffered damage thereby in an amount equal to plaintiffs’ claim, it would not be liable.

Judgment is reversed and cause remanded for a new trial.

LESTER. C. J.. and CULLISON. SWIN-DALL. ANDREWS, McNEILL. and KORNE-GAY, JJ., concur. CLARK, Y. C. J., and RILEY, J., absent.  