Opinion
No. 40017.
March 19, 1956.
1. Contracts — breach of warranty — contract for drilling water well — terms indefinite — parol evidence — issues properly submitted to jury.
In suit for breach of warranty in contracts for drilling of a water well where terms for order for drilling of the well were so uncertain as to what kind and size of well to be drilled that standing alone the terms were utterly indefinite, it was subject to be explained by oral testimony, and issues as to terms of contract and as to authority of the defendant's agent in attempting to execute, modify and rescind the contracts were properly submitted to jury.
2. Damages — not excessive — breach of warranty — contract for drilling water well.
Verdict of $1,012.20 for breach of warranty in contract for drilling of a water well was not excessive but was amply supported by the evidence.
Headnotes as approved by Hall, J.
APPEAL from the Circuit Court of Jones County; LUNSFORD CASEY, Judge.
Welch, Gibbes Graves, Laurel, for appellant.
I. The plaintiff completely failed to make his case against Quick and Grice, Inc., and the Court therefore erred in refusing to grant the defendant's motion for a peremptory instruction both at the close of the plaintiff's case and at the time of the submission of the case to the jury. Hoff v. L. Gould Co., 198 Ill. App.? 499; Kies v. Williams, 190 Ky. 596, 228 S.W. 40; Littrell v. Wilcox, 11 Mont. 77, 27 P. 294; Finch v. McIntosh, 171 Ill. 120; Rankin v. Wever, 78 Ill. App. 86; Schofield v. School Dist., 105 Kan. 343, 7 A.L.R. 788; Shalsky v. Johnson, 138 Minn. 275, L.R.A. 1918A, 1984; Sweezey v. O'Rourke, 226 N.Y. 378, 123 N.E. 752; Chapin v. L. Candee Co., 35 N.Y. Supp. 1018, 14 Misc. 453; Book v. Newcastle Wire Nail Co., 151 Pa. 499, 25 A. 120; Blum v. Brown, 11 Tex. Civ. App. 463, 33 S.W. 145; Borg v. Downing, 221 Wis. 463, 266 N.W. 182; Butler v. Davis, 119 Wis. 166, 96 N.W. 561; Lemke v. Hage, 142 Wis. 178, 135 Am. St. 1066, 125 N.W. 440; Omaha Consol. Vinegar Co. v. Burns, 49 Neb. 229, 68 N.W. 492; Richison v. Mead, 11 S.D. 639, 80 N.W. 131; Electric Lighting Co. v. Elder Bros., 115 Ala. 138, 21 So. 983; DeLaune v. Gambino, 161 So. 331; Buckingham v. Elliot, 62 Miss. 296; Clarke County v. Mississippi Lumber Co., 80 Miss. 535, 31 So. 905; McFadden Oates v. Ray, 184 Miss. 352, 185 So. 245; Magnolia Petroleum Co. v. Williams, 222 Miss. 538, 76 So.2d 365; Hattiesburg v. Hillman, 222 Miss. 443, 76 So.2d 368; Ard Dr. Pepper Bottling Co. v. Dr. Pepper Co., 202 F.2d 372; 12 Am. Jur., Secs. 340-41 p. 895; 36 Am. Jur., Sec. 5 p. 284; 56 Am. Jur., Secs. 145-47 p. 620.
II. The acts of defendant's agent Cole in attempting to execute, modify and rescind alleged contracts with the plaintiff were not within the actual or apparent authority of the defendant. Pan-Am Petroleum Corp. v. Bardwell, 203 Miss. 833, 33 So.2d 451; National Cash Register Co. v. Giffin, 192 Miss. 556, 6 So.2d 605; New Home Sewing Machine Co. v. Moody, 189 Miss. 628, 198 So. 550; 2 Am. Jur., Secs. 195, 348, 350-51 pp. 154, 271.
III. The verdict of the jury was excessive, was against the overwhelming weight of the evidence, and was not supported by the evidence in this cause.
IV. The Lower Court erred in granting certain instructions requested by the appellee, and for refusing to grant certain instructions requested by appellant. Jones v. Dixie Greyhound Lines, 211 Miss. 34, 50 So.2d 902; Vol. I, Alexander's Miss. Jury Instructions, Sec. 56.
Luther Austin, Paul G. Swartzfager, Laurel, for appellee.
I. There is an abundance of evidence in the record from which the jury was warranted in concluding that there was a condition in the oral contract on the second well that required appellant to provide appellee with a satisfactory well, and the evidence shows that appellant failed to fulfill this condition of the contract. Texaco Co. v. Jackson, 174 Miss. 737, 165 So. 546; Woods v. Marath, 128 Miss. 143, 90 So. 714; Sumpter Lumber Co. v. Skipper, 183 Miss. 595, 184 So. 835; Spengler v. Stiles-Tull Lumber Co., 94 Miss. 780, 48 So. 966; Home Mut. Fire Ins. Co. v. Pittman, 111 Miss. 420, 71 So. 739; U.S.F. G. Co. v. Parson, 154 Miss. 587, 122 So. 544; Isler v. Isler, 110 Miss. 419, 70 So. 455; Copiah Hardware Co. v. Johnson, 123 Miss. 624, 86 So. 369; Murphy v. Cicero Lumber Co., 97 Ill. App. 510; Curlee Clothes Co. v. Lowery (Tex.), 275 S.W. 730; New York Life Ins. Co. v. O'Dorn, 100 Miss. 219, 56 So. 379; Jackson v. Creswell, 94 Iowa 713, 61 N.W. 383; R.B. Tyler Co. v. Laurel Equipment Co., 187 Miss. 590, 192 So. 573; Janssens v. Muller, 44 A.L.R. 1560; Great Atlantic Pacific Tea Co. v. Davis, 177 Miss. 562, 171 So. 550; Blair v. McMillion, 171 Miss. 33, 156 So. 519.
II. There is an abundance of evidence in the record from which the jury was warranted in concluding that agent Cole had the necessary authority to execute, modify, and rescind the contract with Ashley. Walters v. Stonewall Cotton Mill Co., 136 Miss. 361, 101 So. 495.
III. The verdict of the jury was not excessive, was not against the overwhelming weight of the evidence, and was supported by the evidence in this cause. J.B. Colt Co. v. Mazingo, 141 Miss. 402, 106 So. 533; Nichols Bus Trailer Co. v. Fuller, 198 Miss. 230, 22 So.2d 243; Williams v. McClain, 189 Miss. 6, 176 So. 717.
IV. The Lower Court committed no error in granting any of the instructions requested by the appellee, and in refusing to grant any of the instructions requested by appellant.
This suit is for the recovery of damages for the breach of a warranty in a contract for the drilling of a water well to supply appellee's home. It appears that on August 2, 1950, appellee gave to the appellant a written order for the drilling of a well sixty feet deep and for the pump and other accessories to be used in connection therewith. The order was signed by the appellee and was subject to the approval of appellant. Appellant accepted the order but the terms of the order are so indefinite as to what kind and size of well was to be drilled that, standing alone, it does not constitute a written contract since the terms thereof are utterly indefinite. Appellee testified that the deal was made with the manager of the branch office at Laurel, Mississippi, whose name is Howard Cole, and it is appellee's testimony that Cole guaranteed that the well would be satisfactory. Cole testified that he was the branch manager with authority to make the contract and to guarantee the well. Both testified that the well was guaranteed to be satisfactory to the appellee, both as to quantity of water produced and also as to the quality of the water. Shortly after the order was signed the well was drilled, not merely to the depth of sixty feet but to the depth of seventy-two feet, and on August 29, 1950, appellant made up another invoice on this well showing a total charge of $475.32 instead of the $439 stated in the original order. There were several changes made in the original order, as shown by the second invoice, including an entirely different type of electric pump.
The seventy-two foot well at first afforded a satisfactory flow of water but an unsatisfactory quality of water and finally went completely dry. Appellee called on appellant to make good its guarantee of the well and, in recognition of the guarantee, appellant drilled a second well in February 1952. The second well was located one hundred feet away from the site of the first well. When the drilling reached a depth of seventy-two feet a good stream of water was brought in, but appellant's agent advised appellee that he would not guarantee the well at that depth and insisted on going deeper and appellee agreed to this provided the second well would carry the same guarantee as the first one. The well was accordingly drilled an additional ninety-four feet in depth, making a total of approximately one hundred sixty-six feet. There was no order for and no writing of any kind in connection with the drilling of the second well. After completion of the well the appellant made out an invoice to the appellee for an additional charge of $272.36. Apparently there must have been some subsequent equipment in connection with the well and fixtures since the total cost of both wells aggregated over $1,100, and they were financed with First Federal Savings Loan Association of Hattiesburg, Mississippi, under a FHA loan, and at the time of the trial the appellee had made practically all payments as they fell due. The water in the second well proved to be as unsatisfactory as that in the first well and finally the appellee brought this suit in the County Court of Jones County for the recovery of damages in the amount of $1,144.90. Upon the trial the jury, after a view of the well on motion of the defendant and with the consent of the plaintiff, returned a verdict in favor of the plaintiff for $1,012.20. An appeal was prosecuted to the circuit court which affirmed the judgment of the county court, and the case is now brought to this Court for decision.
(Hn 1) The first two points raised by the appellant are that it was entitled to a peremptory instruction and that the acts of the agent Cole in attempting to execute, modify and rescind the contracts were not within his actual or apparent authority. Both appellee and Cole testified positively that the guarantee was made, and Cole himself testified that he had the authority to make the guarantee as a part of the contract. Cole further testified that the well should be satisfactory to the customer, both in quantity and quality of water, for a period of ten years, and we think the issue was one for determination by the jury. We are further of the opinion that there was never any valid written contract between the parties and that the whole agreement was oral. Therefore we do not think that Cole's agreement was a modification or a rescission of the written order. The order was so uncertain and indefinite that it was subject to be explained by oral testimony. The original order did not state whether it was to be a water well, an oil well, a gas well, or a sulphur well. It called for a rod pump and the appellant used a jet pump. There were also changes between the original order and the finished well as to the type of fixtures which were used in connection with the well. The whole issue in this case as to the terms of the contract and as to the authority of Cole, was for the jury, and we think the trial court was correct in leaving the matter to the jury for decision.
(Hn 2) It is next contended that the verdict was excessive and was against the overwhelming weight of the evidence and was not supported by the evidence in this case. We do not agree with any of these contentions. The proof for the appellee showed damages in excess of the amount found by the jury and the evidence was ample to support the verdict not only as to the amount but as to the quantum of proof.
There is also a complaint as to the granting and refusal of some of the instructions to the jury. We have carefully examined all of the instructions, and we are of the opinion that taken as a whole they fully and fairly charged the jury as to the applicable law controlling in this case. The judgment of the circuit court, affirming the judgment of the county court, is therefore affirmed.
Affirmed.
Roberds, P.J., and Kyle, Holmes and Gillespie, JJ., concur.