
    Bates v. Harte.
    
      A.ction to Enforce Mechanics Lien.
    
    1. Improvement; scope of term. — The statute, Code, § 2723, recognizes that improvements meriting the protection of a lien may be made upon land otherwise than by building,-but as they may occur in unforeseen variety the scope of the term . improvement is left for determination in particular cases as they may arise.
    2. A .well an improvement giving lien. — A well designed and made for a permanent supply of water is an improvement upon land within the meaning of the statute giving a lien upon the building, or improvement on the land on which the same is situated, to secure the payment for erecting such building or making such improvement or furnishing material therefor. Code, § 2723.
    3. Contract which may be signed by marie without attestation. — A-contract which the statute does not require to be signed may be signed by mark only without attestation; the statutory definition of “signature”, as including mark when witnessed by a person writing his name as a witness, does not apply.
    4. Contract; one part of admitted and the other part excluded; when. — Where a 'contract is in two parts and is offered in evidence the party to the suit on whose ill-founded objection one part is excluded, cannot complain of the exclusion, and of the admission of only the other part although both parts were admissible.
    5. Negligent ignorance cannot be set up to avoid contract. — One who signs a contract in negligent ignorance of its contents cannot in the absence of fraud ■ or misrepresentation set up .such ignorance in avoidance of the obligation. If he cannot read due care for his own interest requires that he. should have it read to him.
    6. Misrepresentations will vitiate contract; when. — But where two parties enter into a‘verbal contract materially different from a contract in writing concerning the same matter afterwards drawn up by one of them, and without any change of the term verbally agreed on, the party drawing the written contract hands it to the other to sign, and without reading it tells him it is the contract they had made, and the other party without other information of its contents and without being able to read it, signs the writing by mark, such misrepresentations might well mislead him into the belief that the writing was according to the previous agreement as stated to him; and the fraud involved in such misrepresentations will furnish a defense to an action based on the purported undertaking.
    7. Party failing to perform his part of contract cannot recover; the other party not being at fault.- — Where it was open to the jury under the evidence to find, in a suit to enforce mechanics’ lien for digging a well, that the plaintiff guaranteed a good and sufficient supply of water, it was error to refuse charges to the defendant that plaintiff could not recover if he failed to comply with, this agreement, there being no evidence that defendant was at fault in the matter.
    8. Charges based on one version of contract when bad. — Where there are two versions of a contract in evidence charges requested by one party to the suit based on his version alone are properly refused.
    9. Charge bad when evidence in conflict. — A charge which assumes that proof of a fact has been made when the evidence is in conflict on that matter, is bad.
    Appeal from Colbert Circuit Court.
    Tried before Hon. Thomas R. Roulhac.
    Tliis is a suit brought by F. E. Harte against Thornton Bates to recover an amount alleged to be due the plaintiff by contract Avith the defendant, and to enforce a mechanic’s lien for the same. The defendant demurred to the complaint so far as it set up a mechanics’ lien on the ground that, the work done by plaintiff Avas not for an improvement for Avhicli the statute gives a lien. On the judgment overruling the demurrer, and on the admission of the contract recorded in the probate court clainqing a lien, the first three assignments of error are based. There Avas a written contract signed by the parties in two parts — the stipulations on the part of the plaintiff constituting one part, and those on the part of the defendant the other part. Each party signed only the part containing his promises. The defendant set up that the written instrument Avas not the contract as made between the plaintiff and himself, and supported this contention by eiidence as set out in the opinion. Charges 2, 3 and 6 refused to the defendant as folloAvs: 2. “Before you can find for the plaintiff in this case you must believe that he complied Avith his agreement as to boring the well.” 3. “If the evidence satisfies you that Harte agreed to bore to water, and he quit boring the well before he reached Avater and without fault on the part of Bates then he cannot recover in this case.” 6. “If you believe from the evidence that the plaintiff agreed to furnish the defendant Avater sufficient to run his farm and he failed to do so then he could not recover in this action.” Charges 1, 4, 5 and 7 were all to the effect that if Hart quit boring th'fe Avell before'he obtained a sufficient supply of Avater, and moved his machinery aAvay he could not recover.
    
      W. P. & W. L. Chitwood, for appellant,
    cited, 10 Am. & Eng'. Ency. of Law, p. 243 (1 ed.) ; 3 Brick Dig'., p. 749; Amos v. State, 73 Ala. 501; Turner v. Robbins, 78 Ala. 592; Steioart v. Weaver, 12 Ala. 538.
    J. T. Kirk, contra,
    
    cited, Eufaula Water Go. v. Addyston &c. Go., 89 Ala. 552; Hughes v. Fargerson, 96 Ala. 346; 62 Ala. 255. , .
   SHARPE, J.

— Under section 2723 of the Code one doing work upon or furnishing materials for “any building or improvement upon land,” is given a lien to be perfected in the manner prescribed, upon the building or improvement and on the land on which the same is situated, ,-to an extent limited by the same section.

The statute recognizes that improvements meriting the protection of a lien may be made upon land otherwise than by buildings, but as they may occur in unforeseen variety the scope of the term improvement is left for determination in particular cases as they may arise. It is well known that a supply of water is often one of the most convenient and useful of all appurtenances to land. Its- development by means of drilling and casing a well may greatly enhance the permanent value of the land. We, therefore, hold that a ivell designed and made for a permanent supply of water is an improvement upon land within the meaning of the statute referred to. Hoppes v. Baie, 105 Iowa 648 (75 N. W. Rep. 495).

This conclusion disposes of the first three assignments of error.

The lack of attestation to defendant’s mark on the contract was not ground for excluding the writing or any part of it. Now, as at common law, such an instrument may be signed by mark only. The contract is not one which the statute requires to be signed and, therefore, the statutory definition of signature as including mark when witnessed by a person writing his name as a witness does not apply. — Beckley v. Keenan & Co., 60 Ala. 293. Under the evidence both that part of the contract signed by the plaintiff and that part signed by the defendant were admissible. It ivas only because of defendant’s ill-founded objection that both parts were not ad-mi tied, and he cannot complain if his own action resulted in the admission of one part to the exclusion of the other.

One who has signed a contract in negligent ignorance of its contents cannot, in the absence of fraud or misrepresentation, set up such ignorance in avoidance of the obligation. If he cannot read, due care for his own interest requires that he should have it read to him. Jones v. Cin., Selma & Mobile R. Co., 89 Ala. 376. If, however, his signature to the instrument without knoAvledge of its contents has been induced by misrepresentations concerning same made by the opposite party, the fraud involved in such misrepresentations Avill furnish a defense to an action based upon the purported undertaking. — Davis v. Snider, 70 Ala. 315; Foster v. Johnson, 70 Ala. 249; Gannon v. Lindsay, 85 Ala. 198. The defendant’s evidence tended to show that before the writing Avas drawn there Avas a verbal contract materially different from that expressed by the Avriting. By the verbal agreement he sets up that the drilling. Avas to be paid for at $1.50 per foot in rock instead of $2 as by the Avriting, and the drilling was to continue until a sufficient supply of Avater Avas obtained, as to which the writing was silent. It further tends to show that Avithout any change of those terms, the plaintiff handed the defendant the Avriting to sign and without reading it told him it Avas the contract they had made for boring the Avell; whereup'.n, without other information of its contents and Avithout being able to read it, the defendant signed the Avriting by mark. From such representations if made, the defendant might well have been misled into the belief that the Avriting was according to the previous agreement as stated by him. By the plaintiff’s testimony the Avriting Avas realU in accordance Avitli- the previous agreement, and he also says it was read; but this conflict in eAddence presented a question of fact Avhich should have been submitted to the jury under appropriate instructions. The giving of the affirmative charge for the plaintiff Avas, therefore, error.

It Avas open to the jury if they found- the Avriting not binding as a contract upon the defendant, to also accept the defendant’s version of the contract. Under the agree-merit as lie states it, the plaintiff could not rightfully have abandoned the 'well before reaching sufficient Avater unless for the defendant’s fault, of Avhich there is no evidence. Therefore, charges 2 and 3 and 6 requested by defendant should have been given.

The remaining charges requested by him Avere properly refused. By the contract, if it was as expressed in the AArriting and as the jury might have found it, the plaintiff did not stipulate to continue the work until the completion of the wel-1 or until sufficient water was obtained. Charges 1, 4, 5 and 7 each ignore that consideration. Charge one is also bad in assuming the well Avas not completed, there being conflicting eAndence as to that fact.

Reversed and remanded.  