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Charles v. Umentum

Supreme Court of Wisconsin
Jun 3, 1952
53 N.W.2d 706 (Wis. 1952)

Opinion

May 6, 1952 —

June 3, 1952.

APPEAL from a judgment of the municipal court of Brown county, circuit court branch: RAYMOND J. RAHR, Judge. Modified and, as modified, affirmed.

For the appellants there was a brief by Martin, Clifford, Warne, Duffy Dewane of Green Bay, and oral argument by Lloyd O. Warne.

For the respondent there was a brief by Kehoe Flatley of Green Bay, and oral argument by Robert H. Flatley.


Action by plaintiff Edward Charles, Jr., to foreclose a mechanic's lien for labor and materials furnished in drilling two wells upon property owned by defendants, Henry J. and Lydia Umentum. From a judgment of foreclosure and sale of the defendants' premises for the sum of $3, 989.89, defendants appeal. Plaintiff has filed his motion for review of that portion of the judgment denying recovery for labor performed in drilling one of the wells.

In November, 1948, defendants entered into an oral contract with one Edward Blahnik to drill a well for the purpose of furnishing water to be used in a packing plant owned and operated by them on the premises here involved. It appears that the contract provided Blahnik would drill the well at a cost of $2 a foot through clay, defendants to furnish the pipe; or $4.50 per foot all the way, Blahnik to furnish the pipe. When Blahnik reached a depth of ninety-seven feet he struck rock and was unable to proceed because of inadequate equipment.

In January, 1949, the plaintiff, Edward Charles, was brought in to finish the drilling. There is a conflict in the testimony as to whether Charles was retained by Blahnik or by the defendants, but plaintiff testified that he agreed to straighten out the hole dug by Blahnik and to continue drilling at the rate of $4.50 per foot; he made no guaranty of water, or any amount of it.

" Q. And your deal was to complete that well? A. Not complete it, do what I could do for him to get water. I wouldn't guarantee him only on another well."

Charles further testified that Henry Umentum, with whom the agreement was personally made, wanted "lots of water; he didn't know exactly how much water he wanted." The first well was tested frequently with a bailer to determine its capacity. At a depth of five hundred eighty feet it was shown to defendant that the well would produce between five hundred and six hundred gallons of water per hour, but defendant said that was not enough. Carl Hansen, the employee of plaintiff who actually operated the equipment in drilling the first well, corroborated this, testifying that defendant said "we should go until we got plenty and I was told before that he needed around twelve hundred gallons an hour."

Henry Umentum testified that he had never asked for twelve hundred gallons per hour; that all he wanted was seven hundred gallons.

At five hundred ninety feet Charles' equipment became imbedded in the hole and the first well was abandoned. It was Umentum's testimony that:

" A. They got their bit stuck and Charles, when he come in there, he says, `Heinie, I can't get the bit out, I'm going to drill a new hole,' I says, `Where are you going to drill? He says, `Right there,' I says, `What's the idea of drilling so close?' He says, `I want to get my tools out.'"

Ervin Jacobs, also Charles' employee, came on the job and spent some time trying to recover the stuck tools, which had a value of about $1,000, but was unsuccessful. The equipment was then moved over about four feet and a new hole was started. Jacobs testified: Q. Now, the reason for drilling the hole so close to the first well was that possibly you could loosen the bit when you got down to that level, is that right? A. Yes, that's right.

Q. How do they usually do that? A. I don't know just how he had in mind. It wasn't any of my business, I was just working for the man.

" Q. But you didn't make an effort to get the bit after you started the new hole? A. No, we didn't."

Jacobs started and finished the second well. It was drilled to a depth of seven hundred ninety feet, tests being made with the bailer "several times" after reaching one hundred sixty or one hundred eighty feet. It was Charles' testimony that at seven hundred ninety feet they got "plenty of water," and Henry Umentum left it to Charles' judgment. Jacobs testified that defendant told Charles he was satisfied there was enough water.

Umentum testified that he was never shown any water, never given any information obtained through use of the bailer, although one of defendants' own witnesses, Albert Whipp, testified to a test he saw made in Umentum's presence.

Plaintiff presented Umentum with a bill for the second well and was refused payment. He did not give him a bill for the first well because Umentum wanted the pipe removed from it and the hole cemented and Charles wanted to try to recover the lost tools. When Umentum told him he would get "no pay," he moved his rig from the property and left the tools in the hole. Charles was asked:

" Q. Was there ever any complaint about the quality of your work? A. No, sir, he never said a word about it."

Thereafter, at the request of the state board of health, one John Gauthier, a well-drilling contractor with fifty years' experience, made a thorough examination of the second hole and advised defendants that the water was running away through the sandstone; that the well would require filling up to approximately one hundred sixty feet. After this was done a test was made with a pump and the well produced seven hundred gallons per hour, an amount sufficient for defendants' needs.

On July 29, 1949, plaintiff filed his claim for lien in amount of $5,939.25, the total cost of labor performed and materials furnished in the drilling of both wells.

The trial court allowed no recovery for the first hole because it was of no value to defendants, but allowed recovery at $4.50 a foot for the entire depth of seven hundred ninety feet in the second hole, less $87.50 which was the amount paid to Gauthier for his work on the second well.


Some attempt was made by the defendants to make it appear that plaintiff was retained by Blahnik and was to be paid by him. However, the court's finding of fact that the defendants hired plaintiff is amply supported by the evidence. There is likewise adequate support for the finding that the rate agreed upon between the parties was $4.50 per foot drilled.

We do not agree with Finding 6 of the trial court that the plaintiff cannot recover for the first hole because it was of no value to defendants. It does not follow from the fact that the first hole did not produce sufficient water to meet the requirements of the defendants, that recovery cannot be had. We find nothing in the record to show that plaintiff guaranteed an adequate supply of water. In Wisconsin it is well settled that a contract to drill a well does not guarantee water. In passing upon the instruction to the jury in Butler v. Davis (1903), 119 Wis. 166, 169, 170, 96 N.W. 561, that:

". . . in a contract of well drilling there is no implied undertaking that water shall be obtained, or that the well shall be a success as to the quantity or quality of the water obtained, but only that the work shall be done in a workmanlike manner, with such skill as may ordinarily be expected from those who undertake such work," this court said:

"The uncertainty of obtaining a supply of good water, however skilfully the work is done, is matter of common knowledge. If well diggers were to be held to guarantee such results whenever they undertake to dig a well, we think there would be a great scarcity of diggers. We have no hesitation in approving the principle laid down by the trial court upon the subject."

It is true that plaintiff's drilling tools became imbedded in the rock at five hundred ninety feet in the first hole and that was the reason it had to be abandoned; but the cause of the sticking was not ascertained and nothing appears in the record to show that it was because of any neglect or improper workmanship on the part of the plaintiff. Defendants do not argue that the plaintiff's failure to comply with certain requirements of the state well-drilling code is evidence that the drilling was not done in a workmanlike manner. Plaintiff is therefore entitled to recover for the footage drilled in the first hole. Borg v. Downing (1936), 221 Wis. 463, 266 N.W. 182.

The trial court determined that plaintiff was entitled to recovery for the full seven hundred ninety feet drilled in the second hole. No reason for its conclusion is given except that "the second hole was of substantial benefit to the defendants."

It is the opinion of this court that plaintiff is entitled to recovery for only one hundred sixty feet in the second hole. Henry Umentum testified that plaintiff said he would drill close to the first hole because he wanted to get his tools out; Ervin Jacobs, who did the actual work on the second hole, testified that the reason for drilling so close was that there was a possibility it would loosen the lost bit when he got down to that level.

When John Gauthier made his examination of the second hole it was found that the vein from which the water supply came was located at a depth of ninety to one hundred feet. From that level the water was dropping to the bottom of the hole and seeping away through sandstone. Upon his recommendation the hole was filled up to one hundred sixty feet, and when a pump was connected the well yielded seven hundred gallons per hour, an amount sufficient for defendants' needs.

Under these circumstances it is difficult to understand plaintiff's testimony that a test at one hundred sixty to one hundred eighty feet showed insufficient water. He had no explanation for it except "It wasn't there when we were drilling there, it couldn't be there." It is not shown that he consulted with defendants at that time to inform them of the amount of water produced at that level. Since the contract was for the plaintiff to drill until water in sufficient amounts for defendants' needs was found, the exercise of ordinary diligence required that plaintiff should have demonstrated the capacity of the well at that level. To go beyond this was not in the interests of the defendants, and the only reason we can assume for drilling deeper was that plaintiff was more interested in loosening up his lost equipment in the first hole than in producing water for the defendants.

Counsel for defendants argue that the plaintiff is bound by law to show good-faith compliance with the requirements of the state well-drilling code. The code requires, among other things, that a well be sterilized, flushed, tested for yield, and capped on completion. Plaintiff testified he would have put in pipe and connected a pump, or capped the well, if defendants had been willing to pay for it, but when he finished drilling he was told he would not be paid. The requirements of the code were complied with by John Gauthier, and plaintiff is penalized for his failure by the reduction of his recovery by the amount paid to Gauthier for his services in that respect.

We therefore conclude that (1) plaintiff should recover for the footage which he drilled in the first hole; (2) plaintiff should recover for drilling one hundred sixty feet in the second hole, plus the cost of materials furnished, less $87.50.

By the Court. — The judgment is modified as stated in the opinion, and affirmed as so modified. No costs to either party.


Summaries of

Charles v. Umentum

Supreme Court of Wisconsin
Jun 3, 1952
53 N.W.2d 706 (Wis. 1952)
Case details for

Charles v. Umentum

Case Details

Full title:CHARLES Respondent, vs. UMENTUM and wife, Appellants

Court:Supreme Court of Wisconsin

Date published: Jun 3, 1952

Citations

53 N.W.2d 706 (Wis. 1952)
53 N.W.2d 706

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