Opinion
L.A. No. 1285.
August 8, 1904.
APPEAL from a judgment of the Superior Court of Los Angeles County and from an order denying a new trial. N.P. Conrey, Judge.
The facts are stated in the opinion.
J.C. Brown, and W.H. Savage, for Appellants.
The failure to shut out the water from the well was a failure of performance on plaintiff's part, it not being naturally impossible to case out the water. The difficulty of performance will not avail. (The Harriman, 9 Wall. 172; Klauber v. San Diego Street-Car Co., 95 Cal. 358; Wilmington Transportation Co. v. O'Neil, 98 Cal. 5; Barrere v. Somps, 113 Cal. 104; Sample v. Fresno Flume etc. Co., 129 Cal. 228.) The findings are against the evidence.
Charles D. Ballard, and Jesse F. Waterman, for Respondents.
There is evidence to sustain every finding and the conclusions reached by the court, and the findings showing full performance on the part of plaintiffs will not be disturbed upon appeal by reason of conflicting evidence. (Putnam v. Lamphier, 36 Cal. 151; Statler v. Broedel, 89 Cal. 184; Wallace v. Maples, 79 Cal. 433; Estate of Kohler, 79 Cal. 313; Capital Savings Bank v. Reel, 62 Cal. 419; People v. Hennessy, 59 Cal. 568.)
Action to compel the specific performance of a contract by defendants to deliver one hundred thousand shares of the capital stock of the Pioneer White Oil Company. The case was tried before the court and judgment entered for plaintiffs.
Defendants appeal from the judgment and order denying their motion for a new trial.
The controversy arises out of a contract made by the defendants as parties of the first part and plaintiffs as parties of the second part, on the first day of May, 1900. The material portions of said contract are as follows: —
"Third: The parties of the second part hereby agree in consideration of receiving from the parties of the first part one hundred thousand shares of the said capital stock fully paid up and non-assessable that they will erect a derrick and drill an oil-well on the said lands at a point to be selected by them to a depth of 1,100 feet unless oil in paying quantities, as hereinafter in these presents set out, be struck at a less depth; said well to be fully completed and finished by them and provided with proper and necessary casing, perforated at proper places, tubing, pump, and all necessary connections thereof put therein to the proper depth to properly pump the said well and everything completed ready for pumping; such sinking of said well and completion of the same to be at the expense and charges of the said parties of the second part, and to be so completed without any lien, charge, claim, or encumbrance upon the said land, or upon the parties of the first part.
"Fourth: That the said parties of the second part, for the purpose of testing the full capacity of the said well, shall at their own expense pump the same for seven successive days, after the said well shall have been completed. . . .
"Seventh: In addition to the said derrick and well so completed, with all necessary casing, the said parties of the second part shall pay to the said parties of the first part the sum of $5,000, as follows: $1,000 in cash on the execution hereof, the receipt whereof is hereby acknowledged; $2,000 when the well is so completed; and $2,000 six months thereafter; but should oil not be found in said paying quantities in the said well, then the said parties of the second part shall not pay to the said parties of the first part the said last two payments of $2,000 each, but will be released therefrom.
"Eighth: Upon the said completion of the said well, as aforesaid, by the said parties of the second part, under the terms of this agreement, and that whether oil in paying quantities be found therein or not, the parties of the first part agree to deliver to the said parties of the second part the said 100,000 shares and assign the same to and cause certificates therefor to be issued to the said parties of the second part either jointly or in such proportion as the said parties of the second part shall agree upon between themselves, and notify the said party of the first part of such agreement."
The findings of the court challenged by appellants are, first, "that pursuant to, and in accordance with the terms of said contract, the plaintiffs duly carried out and performed all the conditions and covenants thereof on their part to be performed, and completed the work agreed by them to be performed, and finished the well therein described on the 20th day of March, 1901, and thereupon put the pump on said well and pumped the same for a period of seven days thereafter, as required by the said contract," and, second, "that oil was not struck or encountered in paying quantities in said well either to the extent of ten barrels per day, or to any other extent more than a mere trace thereof." The sole contention of appellant is, that these two findings are not supported by the evidence. Under the well-settled and oft-repeated rule that the trial court is the final arbiter of all questions of fact upon which there is a conflict in the evidence, we cannot disturb the findings if there is substantial evidence to support them. We have carefully examined the evidence and find it sufficient.
As to the second of said findings, Frank Vail, one of the plaintiffs, testified as to finding oil in the well: "There was nothing ever showed up except a trace now and then on the water. I did not see any oil on the water at any time."
The witness Putnam testified that in boring the well they found no oil — "only some rainbow colors on the water that might have come off the tools or off the sand-line."
Appellant has not called our attention to any evidence that oil was found in any perceptible quantity in the well. It is therefore useless to further discuss the second finding.
As to the first finding, the appellants do not claim that the well was not drilled to the depth provided for in the contract and completed by plaintiffs within the time provided, without any lien, charge, or encumbrance thereon of any kind. Their contention is, that the plaintiffs did not properly shut off and case off the water in the said well, and that the contract was not completed because the water should have been kept out, and that the result of water flowing into the well is to drive away and hold out the oil that would otherwise run into the well.
There is no provision in the contract that the plaintiffs should keep the water out of the well. They agreed to provide the well "with proper and necessary casing, perforated at proper places, tubing, pump, and all necessary connections thereof put therein to the proper depth to properly pump the said well, and everything completed ready for pumping." If plaintiffs complied with their contract in every respect, and yet the water could not be kept out, still they complied with their contract. There is evidence tending to show that plaintiffs used proper and necessary casing and otherwise complied with their contract. Plaintiff Frank Vail testified that they used every means to keep the water out, but could not do so; that the formation in places was porous, shaly rock with occasional water and gravel; that they put down 1,105 feet of 5 3/8 casing; put on a packer, and perforated it.
The witness Putnam testified that when they were seven hundred feet deep they put in 7 5/8 casing to the bottom of the hole and drove it, but still did not shut the water off; that "after we put in our tubing and pumped seven days and nights"; that they were attempting to shut the water off all the time, and were engaged in this about two and a half months.
The witness Overman, a well-driller by occupation, testified that in his opinion all was done in the way of shutting off the water that could be done. The witness Farr testified to the same effect, and further said: "Impossible to shut water off in crooked-up and broken shale such as was in the well in question."
There is other evidence in the record of a contradictory nature, but the above supports the findings.
We advise that the judgment and order be affirmed.
Chipman, C., and Gray, C., concurred.
For the reasons given in the foregoing opinion the judgment and order are affirmed.
Lorigan J., Henshaw, J., McFarland, J.