
    A. B. Bloom et al., Partners, etc., Appellees, v. E. L. Foster et al. (John R. Robertson, Appellant).
    No. 18,145.
    HE ADNOTE BY THE REPORTER.
    
      Action — Drilling ■ and Cleaning Oil Wells — Erroneous Item Included in Judgment. In an action for drilling and cleaning oil wells where the evidence fails to show neither an agreement nor a custom whereby the owner was to pay for cleaning new wells, an item of $50 therefor included in the judgment is stricken out, and the judgment so modified is affirmed.
    Appeal from Montgomery district court.
    Opinion filed May 10, 1913.
    Modified.
    /. B. Tomlinson, of Independence, for the appellant.
    
      T. H. Stanford, and G. T. Stanford, both of In&e-' pendence, for the appellees.
   Per Curiam:.

As we construe the contract made by the parties, the appellee guaranteed that a certain well should have a certain capacity, in consideration of which the price per foot for drilling that well was increased from seventy cents to one dollar. If the capacity of the well to produce gas proved to be less than the stipulated amount, he was not to receive any compensation. There is no claim that he failed to satisfy the terms of his guarantee. The court found generally for the appellee, and we think the evidence is sufficient to sustain the judgment except as to the allowance of $50 for cleaning' out well number ten. There was no evidence of any agreement to pay for cleaning out new wells; nor was there evidence of a custom by which the owner paid for that work.

The judgment is therefore ordered modified in accordance with these views.  