
    Canewood Oil Company et al. v. Cox.
    (Decided Oct. 20, 1933.)
    
      C. E. SPENCER for appellants.-
    LBEBERN ALLEN for appellee.
   Opinion of the Court by

Judge Dietzman

Affirming.

This is the second appeal of this case. The opinion on the first.appeal is reported in 207 Ky. 168, 268 S. W. 1081. It is a suit brought by the appellee against the appellant, the Canewood Oil Company, a partnership composed of Harry B. Clay, L. C. Neal and Frank Thompson, to recover under an. alleged express contract, the terms of which as claimed by the appellee are-' that the appellants were to and did employ him to operate a drilling machine for them in drilling for oil and gas at such points and places as they were to .designate upon the Fred Adams lease or the A. C. Creech lease in Wolfe county, Ky., the appellants to furnish a drilling' outfit and everything complete with the exception of the' labor, and the appellee to furnish all labor with which to do the drilling; that at least two wells for oil or gas on one or both of said leases were to be drilled and as many more as should be mutually agreed upon; that the appellants were to pay the appellee the sum or $1 per lineal foot from the surface or top of the ground down until the cap rock of the oil sand should be reached, and thereafter to pay appellee the sum of $40 per day until the well should be completed; that, in the event the appellants did not have the machinery on the leases and ready for the appellee to begin drilling by July 28, 1919 (the contract having been entered into on the 15th day of July, 1919), or in the event the machinery should thereafter for any reason be shut down by the appellants, then the appellee was to be paid for each day of “shutdown time” 'the sum of $40. The ap-pellee claimed that the appellants had breached the contract, in that they had never furnished the drilling machine or made any location, and that, after keeping the appellee in a state of. waiting for 68 days • thereafter, declined to go forward. He claimed damages in the sum of $40 per day for the 68 waiting days and the profit he would have made on the drilling of the two wells — a total of $3,720. The answer was a complete traverse of the appellee’s claims. On the first trial, the appellee took the position that the contract between him and the appellants was made for the appellants by Frank Thompson. Thompson being dead at the time of the first trial, the appellee was not then permitted to testify concerning the terms of the contract. The verdict which the appellee secured on that trial was reversed by this court, because there was no competent proof to establish the contract claimed by the appellee. On the return of the case to the circuit court, it was retried before a jury, and this time the appellee claimed that the contract he relied upon was made for the appellants by Clay and Neal. These men denied that any contract had been made by them with the appellee. The court submitted the case to the jury, instructing it by the first instruction that it should allow the appellee in the event it found that a contract had been entered into as claimed by the appellee and that the appellants had breached it, as claimed by the appellee, the sum of $1 only for the profit he would have made had he carried out the contract, and by the second instruction that, if found that a contract had been entered into and breached as claimed by appellee, it should find, for appellee whatever shutdown time had occurred at the- rate of $40 per day. The jury awarded the appellee the $1 damages allowed by tbe first instruction and tinder tbe second instruction $40 a day for 23 days. From tbe judg- , ment entered on tbat verdict, tbis appeal is prosecuted.

Appellants for reversal first insist tbat they were entitled to a peremptory instruction because tbe appel-lee bad testified on bis first trial tbat be bad made tbe contract bere relied upon witb Thompson and not witb Clay and Neal, but on tbe second trial bad testified just tbe opposite. Tbe case is before us on a narrative bill of exceptions, and, although it appears from this bill tbat appellee was asked if be did not on bis first trial testify tbat be made tbe contract witb Thompson and appellee replied in tbe negative, there is nothing in tbe bill of exceptions to show tbat the testimony on the'first trial was ever introduced on tbe second trial to contradict tbe appellee. The bill of exceptions filed in' tbe first trial is made a part of tbe record in tbis case, but there is no showing tbat it was ever used on tbe second trial or tbat appellee bad been contradicted by its contents. Of course, even bad appellee' been so> contradicted, it would still have been for tbe jury to say whether it believed tbe appellee told tbe truth now or on bis first trial, and so even under such circumstances tbe motion for a peremptory instruction would have been properly overruled. See Staples v. Continental Ins. Co. of New York, 223 Ky. 842, 5 S. W. (2d) 265. Nor can we say tbat on tbe record as presented to us tbe verdict is flagrantly against tbe evidence. True it is tbat Neal and Clay deny they made any contract witb tbe appellee and say tbat be testified on tbe first trial tbat be made tbe contract witb Thompson and not witb them, but tbe appellee bad testified tbat be did make tbe contract witb them and not witb Thompson, and denied tbat be bad testified to tbe contrary on tbe first trial. Tbe jury did not have tbe transcript of tbe evidence or tbe bill of exceptions of tbe first trial before it, so far as tbe record of tbis trial is concerned. All it bad on tbe question bere under discussion was tbe testimony of Neal and Clay on the one side and tbe appellee on tbe other. In such state of case, a burling in favor of appellee cannot be said to be flagrantly against tbe evidence produced before tbe jury, for under familiar law it bad tbe right at least under such circumstances to believe appellee to tbe exclusion of Clay and Neal.

It is next argued that the court erred in admitting incompetent testimony to the effect that the usual and customary allowance, for shutdown time in this oil field was $40 a day. Technically, of course, this evidence was incompetent, since'the issue whs whether or not an express contract had been made' to pay $40 a day for shutdown time. But the admission of the complained of testimony could not have been prejudicial, since, if the contract claimed by appellee had been entered into, then the rate was $40 a day, no matter what the customary «price for shutdown time was, and, if no contract had been entered into, appellee was entitled to nothing.

It is lastly argued that there were errors in the instructions. Instruction No. 1 in substance told the jury that, if they believe that the appellants entered into a contract with the appellee by which they were to furnish him all the tools, machinery, fuel, and water necessary to drill two wells, and that they failed to furnish same or to make a location for said wells, they should find for the appellee damages in the sum of $1. This the jury did. Appellants complain that this instruction authorized the jury to find that they had breached the contract by failing to furnish a location for the wells without requiring the jury to believe that the duty to furnish such location was one of the terms of the contract. It may be said here that no such complaint is made as to the second instruction which submitted the question of the terms of the contract and the breach thereof as to shutdown time. Though perhaps the court did commit error in this first instruction as appellants complain, yet only nominal damages were authorized by this instruction, and only nominal damages were awarded. This court will not reverse a case where so trivial an amount as $1 is involved as is the case here. See Malone v. Keith, 205 Ky. 711, 266 S. W. 381; Commonwealth v. Louisville Transfer Co., 181 Ky. 305, 204 S. W. 92; Ferrell v. Ferrell, 48 S. W. 153, 20 Ky. Law Rep. 1023.

So far as the second instruction is concerned, appellants complain that it put no limit upon the number of days for which the jury might award shutdown time. However, the appellee had testified that he had been shut down 68 days, and there was no testimony to the ’contrary, the appellants confining their proof to the support of their assertion that they had not entered into. any contract with the appellee. The jury awarded.the appellee compensation for only 23 days shutdown time, so that the error, if there was error, in failing to pnt a limit in the instruction on the number of-days for which shutdown time could be allowed, was plainly nonprejudicial.

No error appearing prejudicial to appellant’s substantial rights, the judgment is affirmed.  