
    Charles C. Bigelow, App’lt, v. Joseph Garwitz, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 23, 1891.)
    
    Verdict—Contrary to instructions.
    In an action for the contract price for drilling a well there was no dispute as to the amount earned by plaintiff, if the contract was as he alleged, and the court charged that if the contract was as alleged by plaintiff, he was entitled to a verdict for $224.80; whereas, if it was as alleged by defendant, the latter was entitled to a verdict. The jury returned a verdict in favor of plaintiff for $100. Held, that this was in direct contravention of the instructions and manifesily the result of a compromise, and was properly set aside.
    Appeal by the plaintiff from an order at the circuit granting the defendant’s motion, on the minutes, to set aside the verdict of a jury and for a new trial.
    
      A. C. Calkins, for app’lt; W. H. Tichnor, for resp’t.
   Dwight, P. J.

The order seems to us 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 be 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 was 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 twenty-five dollars 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 Tesult 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 question 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 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.

Macomber and Lewis, JJ., concur.  