
    Sherzer and Company, Appellant, v. D Buckholz and Mrs Buckholz.
    Contract: performance. Where plaintiff contracted to build a well and to secure a supply of water, or to receive no pay, and no water was secured, and the well was bored so crookedly that a pump could not have been placed therein, he cannot recover on the contract.
    
      Appeal from Osceola District Court— Hon F. B.. Gaynor, Judge.
    Saturday, April 8, 1899.
    Action in equity to establish a mechanic’s lien, and for judgment and decree foreclosing the same, under a contract for digging a well for the defendant D. Buckholz. issues were joined, and, on trial bad, judgment was entered dismissing plaintiffs’ petition, from which they appeal.
    
    — Affirmed.
    
      W. P. Briggs for appellants.
    
      Boies da Both for appellees.
   Given, J.

— Plaintiffs and defendant Buckholz entered' into a verbal contract by which the plaintiffs were to dig a. well on defendant's premises, in pursuance of which plaintiffs set their machinery and sank the well to a depth of from one hundred aud forty to one hundred and sixty-five feet. The material dispute is as to what the contract was. Plaintiffs claim that they were to have forty cents a foot for the first forty feet, and that, failing to get water at that depth, it was agreed that they should have ten cents per foot additional for the next ten feet, and ten cents additional for every ten feet thereafter; defendants to furnish, and they to put in, the curbing. The defendants concede that the contract was, as to price, as claimed, and claim that the plaintiffs were to get a supply of water or no pay. Defendants also alleged that the well that was bored was so crooked that a pump could not be placed therein. Defendants set up a counterclaim for boarding the plaintiff and their hands and horses during the time they were boring the well, but as nothing was allowed them on this counterclaim, and they have not appealed, it is not before us for consideration. We will not set out the evidence. It is sufficient to say that we think it sustains the claim of the defendants that the plaintiffs were to secure a supply of water, or to receive no pay, and that they failed to secure the supply of water. It is also shown that the well was bored so crookedly that a pump could not have been placed therein, even if a supply of water had been secured. We think the plaintiffs failed to establish their right to a judgment and that their petition was properly dismissed. — Affiiímed.  