Opinion
1-3-1950
RICHTER v. WALKER et al. Civ. 7639. Sac. 6000.
Curtiss E. Wetter and Rawlins Coffman, Red Bluff, for appellant. Alfred E. Frazier, Red Bluff, for respondents.
RICHTER
v.
WALKER et al.
Jan. 3, 1950.
Rehearing Denied Feb. 1, 1950.
Hearing Granted March 2, 1950. *
Curtiss E. Wetter and Rawlins Coffman, Red Bluff, for appellant.
Alfred E. Frazier, Red Bluff, for respondents.
ADAMS, Presiding Justice.
Plaintiff Richter brought this action to foreclose a mechanic's lien for $3,187.22, with interest from June 27, 1947, for labor performed and materials furnished under an oral contract to drill a water well on the premises of defendants Walker in Tehama County and install a pump therein. In their answer defendants alleged that in October, 1945, they entered into an oral contract with Richter to drill the well to a depth of 200 feet, if necessary, and agreed 'that such well would produce Six Hundred (600) gallons of water per minute.' They admit that plaintiff entered upon drilling operations, but allege that he failed to complete same in accordance with specifications or in a workmanlike manner, and that, as a proximate result of the carelessness, inefficiency and negligence of plaintiff, the well, as left by plaintiff, produced no more than 150 gallons per minute; that the pump installed by plaintiff was not the proper kind of pump for the kind of well produced, in that it was inefficient and too expensive for economical operation; that the well as constructed by plaintiff was 'of absolutely no value whatever to defendants,' and that they would have to drill an entirely new one.
Defendants Walker then cross-complained, seeking damages in the sum of $12,653.00 for plaintiff's alleged breach of the contract. Plaintiff denied the allegations of the cross-complaint, including a denial of the allegation that he agree to drill a well that would produce water at the rate of 600 gallons per minute. At the trial Walker testified that plaintiff did so agree and plaintiff denied it; but on this appeal respondents have apparently abandoned such contention since they admit that the plaintiff 'did not guarantee that he would find or produce water,' and the court did not find that such a guarantee was made.
The findings recite that plaintiff agreed to drill the well at a cost of $5.00 per foot, to furnish the casing therefor, and supply a proper pump and motor; that the well should be drilled to a depth of 200 feet if necessary to procure adequate water, and that he would drill same in a good and workmanlike manner; that he drilled the well and inserted the casing, and about March 22, 1947, completed all of his work concerning the said premises; that he supplied a pump and motor at an agreed price of $1350.50, and that the sale of same was separate and distinct from the contract for the drilling of the well. However, it found that Richter did not drill the well in a good or workmanlike manner and that it is defective; that he was fully informed concerning the requirements of volume of water from said well to make same economical and practicable, and the amount of water so required was between 450 and 500 gallons per minute; that 'if said well had been drilled in a good and workmanlike manner it might have produced the volume of water required,' but that it failed to produce more that 150 gallons per minute, and that such failure was 'partly due to the bad and unworkmanlike manner of drilling performed' by said plaintiff; that the 'said well is of slight or very little value to the defendants,' and 'is of only slight value to the said premises,' and 'does not constitute any improvement whatever to said premises' (Italics added); that immediately after plaintiff ceased drilling he was informed by cross-plaintiffs of the defective condition and given ample opportunity to improve same and correct any errors made, but failed and refused to do anything, and that the Walkers undertook to make improvements and expended the sum of $653.00 therefor. It was found that plaintiff had filed his claim of lien, but that his claim was subsequent to other claims, and subordinate thereto; and 'that said well is valueless to any portion of the said premises.' It found that the defendants Walker were indebted to plaintiff in the sum of $1350.50 for the pump, but that Richter was indebted to them for $653.00 which they expended to improve the well.
A judgment for plaintiff against the Walkers for $697.50 with costs was entered, but a lien was denied. Plaintiff has appealed from said judgment.
Plaintiff was allowed nothing for the drilling of the well, and from the amount found to be due him for the pump, the court deducted the amount expended by the Walkers, though it found that the sale of the pump was separate and distinct from the contract for the drilling of the well. It is also inferable, if not apparent, that the finding that the well is of 'slight or very little value' to defendants is based upon the failure of said well to produce more than 150 gallons of water per minute. And while it was found that plaintiff did not drill the well in a good or workmanlike manner, and that same is defective, there is no finding as to the respects in which plaintiff failed, or as to any defect except that the well failed to produce the 450 or 500 gallons of water which it might have produced if drilled in a good or workmanlike manner.
As for the finding that the well was not drilled in a workmanlike manner, it is not disputed that drilling was started March 15th and ceased March 22nd; that it was drilled where Walker directed and to a depth of 173 feet, and cased to a depth of 168 feet; that it was then capped. The pump was not intalled until June 26th, as it was not obtainable until that time. There was testimony that at the conclusion of the drilling the well should have been pumped, in order to clean out fine materials in the water-bearing strata; that the delay in putting in the pump was excessive.
In an opinion, filed prior to the making of the findings in the case, the trial court said that the evidence was conflicting as to whether the well was drilled in a workmanlike manner, but added: '* * * The well was straight and did not bind the pump. Either there was or there was not a sufficient supply of water in the well. When drilling stopped all thought it was there. To assume that it should be there because of some other wells in the vicinity has a certain relation to the probabilities; but there are wells and wells. If it be claimed the water is there but was sealed off by the driller, it would seem in part refuted by the fact of pumping 300 gallons for a short time. If there was too much perforation and this permits an undue amount of sand etc. to enter the well, that must be in part due to the acts of the owner in having extra work done along that line. All in all, it seems to me that the water, is simply not there in sufficient quantity. If so the Plaintiff must prevail.'
After the rendition of that opinion the case was reopened for the testimony of O. L. Wilder, an expert well driller of some 38 years' experience, who, at Mr. Walker's request, had worked on the well in November, taking sand and gravel therefrom, and in January had gone there again, at which time he took out more sediment, and extended the casing of the well to the bottom of it; also, at Mr. Walker's request, he had made additional perforations in the casing. He said that in his opinion the sooner a well is pumped after drilling, the better; but he testified that the well was drilled straight, and that when he left it he thought it was in good shape.
The well, however, failed to produce the amount of water which the Walkers contend was necessary for their use; but it does not appear from the evidence or from the findings that such failure was due to defects in the well or to delay in bailing it, since, when bailed out by Wilder, it would not produce it. The conclusion seems inevitable that the well was deemed defective only in that it failed to produce the desired amount of water, and, perhaps, that plaintiff was at fault in not bailing it immediately after the drilling was completed, though there is testimony that it was so bailed. Therefore, unless it can be said that plaintiff guaranteed to drill a well that would produce the desired amount of water, he should have been allowed the amount agreed to be paid him, less, perhaps, the reasonable cost of bailing it.
However, there is no finding that plaintiff made such a guaranty, nor was it found that the well has no value because of other defects. There is no finding that if drilled in any other manner it would have produced 450 to 500 gallons of water per minute--only that it might have done so; and the finding that it is of slight or very little value seems to have been a conclusion based upon its failure to so produce.
The Wisconsin case of Borg v. Downing, 221 Wis. 463, 266 N.W. 182, 183, involved a contract for drilling a water well. During the course of the opinion the court said: 'Before applying the tests prescribed by those rules to this case, it should also be noted at the outset 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.' In approving an instruction to a jury to that effect, this court said, in Butler v. Davis, 119 Wis. 166, 170, 96 N.W. 561, 562: 'The uncertainty of obtaining a supply of good water, however skillfully 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.''
Omaha Consolidated Vinegar Co. v. Burns, 49 Neb. 229, 68 N.W. 492, 493, involved a water well drilling contract. The court there said: 'If the agreement is executed without provision that a specific flow of water shall be obtained, as was this one, then the labor and materials must be paid for as per contract, be the flow of water little or much.'
That case was cited with approval in Skalsky v. Johnson, 138 Minn, 275, 164 N.W. 978, 979, L.R.A.1918A, 1084, where the court said as to the quality of the water to be produced in a water well: 'There is no sound reason for holding that because a well-digger agrees to dig a well on a farmer's farm he warrants to the farmer the quality of the water underlying the farm.' Also see Lemke v. Hage, 142 Wis. 178, 125 N.W. 440, 441, 135 Am.St.Rep. 1066.
We therefore conclude that the findings are insufficient to support the judgment which not only disallows plaintiff anything whatsoever for the drilling, but goes farther and penalizes him in the sum of $653.00, apparently the amount defendants paid out, as they claim, to 'minimize' the damages.
'Minimize', however, means 'To reduce to the smallest part or proportion possible.' Webster's New International Dictionary. And to minimize damage means that one who has suffered damage through the negligence or wrongful acts of another is bound to exercise reasonable care to avoid loss or to minimize the consequences of such injury. It does not mean an enhancement of damages. Also a reasonable or moderate, and not an extraordinary expenditure is required. It is said in 15 Am.Jur., sec. 27, pp. 420-422: 'One who is injured by the wrongful or negligent acts of another, whether as the result of a tort or of a breach of contract, is bound to exercise reasonable care and diligence to avoid loss or to minimize or lessen the resulting damage, and to the extent that his damages are the result of his active and unreasonable enhancement thereof or are due to his failure to exercise such care and diligence, he cannot recover; or, as the rule is sometimes stated, he is bound to protect himself if he can do so with reasonable exertion or at trifling expense, and can recover from the delinquent party only such damages as he could not, with reasonable effort, have avoided.'
In Winans v. Sierra Lumber Co., 66 Cal. 61, 65, 4 P. 952, 955, the court said: 'The law imposes upon every one engaged in the performance of a contract the duty of doing everything in his power to prevent loss to himself from a breach of the contract by the other party. If he cannot prevent it altogether, he must make reasonable exertions to render it as light as possible; and if, by his own negligence of willfulness he allows the damages to be unnecessarily enhanced, the increased loss must fall upon him. Hamilton v. McPherson, 28 N.Y. 72, .'
The measure of recovery in a case such a this, is the sum stipulated in the contract, less the damages sustained by the failure strictly to perform, Norton v. Meyers, 98 Cal.App. 175, 179, 276 P. 611; Standard Cabinet Works v. Nathan, 117 Cal.App. 584, 585, 4 P.2d 166; and unless it can be said that the well is of no value to defendants, and that such fact is due to the unworkmanlike manner of drilling same, or that it is of no value because plaintiff agreed to drill a well that would produce between 450 and 500 gallons of water per minute, plaintiff is entitled to recover at least the amount provided to be paid by his contract, less the damages, if any, sustained by defendants by his failure strictly to perform. He should not be deprived of any allowance for the work done. It is not found that he agreed to drill a well that would produce the aforesaid amount of water, nor is it found that its failure to produce more than 150 gallons per minute was entirely due to bad drilling, or that the well has no value. The only thing shown by the evidence to have been done by respondents was to bail the well after the drilling was completed, and to extend the casing, but even after that it did not produce in excess of the amount obtainable theretofore; and if defendants are entitled to any offset from the contract price, only the reasonable cost of whatever was done to minimize their damages is allowable for that purpose.
As for plaintiff's right to a lien, section 1186 of the Code of Civil Procedure provides that a mechanic's lien is prior to liens recorded after the lien claimant commenced his work. The record shows that plaintiff started drilling March 15, 1957, and that the liens to which the court gave priority were recorded after that date. Apparently the trial court concluded that plaintiff's lien was subordinate because he had not completed his work before the others were recorded. Therein it erred. See 17 Cal.Jur., sec. 102, p. 155; Code Civ.Proc., sec. 1183.
Respondents defend the disallowance of any lien upon the sole ground that the work done by plaintiff was valueless to them. But the court did not so find; therefore plaintiff's lien was valid to the extent, at least, of the value of plaintiff's work under the contract.
Appellant also contends that certain items in his cost bill were erroneously disalloed, to wit, the amount paid for preparation of his lien claim, the notary fee, and cost of recording same. Under Code of Civil Procedure, sec. 1195, plaintiff was entitled to recover the notary fee and the cost of recordation, but not expenditures for the preparation of the claim, the latter item being in the nature of an attorney's fee, not now allowable. 17 Cal.Jur., sec. 159, p. 222. Appellant also complains that he was not allowed an item of $35 paid for a title search. He cites no authority supporting him. Section 1195, supra, does not provide for such a charge as costs. See Moss v. Underwriters' Report, Inc., 12 Cal.2d 266, 274, 83 P.2d 503. The right to recover costs is purely statutory, and he who seeks to recover them must 'put his finger on a statute which awards the same.' Sime v. Hunter, 55 Cal.App. 157, 159, 202 P. 967, 968; Bond v. United Railroads of San Francisco, 20 Cal.App. 124, 127, 128 P. 786.
The judgment is reversed.
PEEK and THOMPSON, JJ., concur. --------------- * Subsequent opinion 226 P.2d 593.