dissenting.
I regret that I am unable to concur in the opinion of the majority.
The majority, by setting forth none of the pleadings and but a scant portion of the plaintiff’s testimony, by some metaphysical metamorphosis reach the conclusion that the parties agreed defendant would in the future, as a part of the sale and purchase of the property, install a well and furnish water of a quality fit for domestic purposes. A reading of the testimony will disclose no such contract and further will disclose that this court is doing what no other court has ever done, made a contract for the parties, and then found it breached.
*398The plaintiffs for their cause of action allege:
# # # #
“HI
“That as a part of said transaction defendant agreed to drill a well on said real property so as to furnish plaintiffs with a satisfactory supply of water for domestic use.
“IV
“That defendant breached and violated the terms of said contract in that said well did not furnish a satisfactory supply of water for domestic purposes, that the water from said well was muddy and said well caved in for the reason that it was not properly cased >and on account thereof plaintiffs have 'been and are damaged in the sum of $1,443.37.”
Now, keeping in mind that plaintiff Charles 0. Caldwell alone offered testimony in the cause, I set forth his statements with reference to any promises of the defendant which he claims were breached:
“Q Did you with Mr. Wells view the property you purchased and the property on which this well had been drilled?
“A Yes sir.
“Q Just tell the Court what you did .in connection with that inspection?
“A Well, we went out there and looked the property over and inquired about the well; he said that it was a good well, and we went out there and all that was showing, all we could see was the casing in the well, which was sticking above the ground; we inquired about the water, the supply of water, and they have a mirrow [sic] of some sort that they reflect the sunlight down in there and we could see water in there.
. “Q Did you know anything about wells, how they were constructed and so on?
“A No sir.
*399“Q We are talking about a time, are we not, before you actually purchased this property?
“A Yes sir.
“Q What was said about the well as to whether it would supply sufficient water for the property or not?
“A We inquired about that and Mr. Wells said it would produce twelve to fourteen gallons per minute, and that was sufficient enough to supply what water we needed for household use plus irrigating the lawn.
“Q At the time you examined this well before you signed the earnest money receipt was the well equipped with a pump¶
“A No sir.
“Q Who agreed to — what was the agreement so far as equipping the well with a pump ¶
“A Mr. Wells said that he would have the pump installed, and it would be all hooked up ready for use.
“Q By hooking it up, what had to be done in order to hook it up?
“A The well-house had to be dug, foundation built, the pump had to be installed and the line laid from the pump to the house to connect into the plumbing in the house.
“Q Mr. Wells agreed to do all that?
“A Yes sir.”
The deed from defendant to plaintiffs was executed on April 18, 1959, and plaintiffs entered into possession of the property about April 24, 1959. With reference to the water supply when plaintiffs took possession, Mr. Caldwell stated:
“Q Was the well at the time you signed this earnest money agreement completed, had the well been completed as you say it was to be completed?
“A No sir.
*400“Q Had any part of that work been done?
“A I don’t believe so; they may have started work on digging the hole for the foundation around there.
“THE COURT: Had started what?
“THE WITNESS: Started the digging of the hole for the foundation of the pump house.
# # # #
“Q Tell the Court what the condition of the well, the water from the well was at the time you took possession — strike that. At the time you took possession had the well been equipped with a pump and hooked up and so on?
“A Yes.
“Q What was the condition of the water that you used or obtained from the well when you took possession?
“A The water was cloudy, murky looking, like it had mud or settlement in it.
“Q Did you advise Mr. Wells, the defendant, of that condition?
“A Yes, we did.
“Q Did he say anything to you about it?
“A At the time he said that he had talked to the well-driller and he said that the water coming through the veins was washing the wein [sic] out •and new water was coming in, and that was what they thought was causing the water to be murky.
“Q Did they think it would clear up ?
“A Yes, they did.
“Q What was the fact as to whether or not the well did clear up ?
“A The well never did clear completely up.
“Q What was your experience with the water ?
“A Well, the water was continually cloudy and murky and at times we had to go to the neighbors to get water for drinking purposes. It went on *401that way for sometime, and during the hot weather it would clear up, maybe for 'a period of a week, never over two weeks, and then it would become cloudy and murky again.
“Q Did you advise Mr. Wells of this condition on more than one occasion?
“A Yes, I did.
“Q Did he always give you the same response as you have stated?
“A That is right.
“Q What happened to the well later on?
“A On 1STovember 6 the water supply completely stopped; I thought that possibly something had happened to the pump, so we immediately called the Pendleton Grain Growers who installed the pump. They sent a man out to check it, and he said the pump was working, but that there was no water supply there. In turn we tried to contact Mr. Wells, and he was not available at the time.
* * * *
“Q Did you get someone to look at the well to see what was wrong?
“A Yes sir.
“Q Who was that?
“A Mr. Dreyer.
“Q He, Mr. Caldwell, subsequently did the work that is shown on Exhibit No. 1 here?
“A Yes sir.
“Q How has the well worked since that time, since the well Was completed by Mr. Dreyer?
“A It has worked perfectly ever since.
“Q The water has always been clear?
“A Yes sir.
“Q Usable?
“A Yes sir.
*402. “Q During the time that this water was murky you say you had to obtain drinking water from neighbors ?
“A Yes sir.
“Q And of course in November it stopped up entirely9
“A Yes sir.
“Q No flow at all?
“A No sir.”
This, evidence, which, as stated, comes solely from the lips of the plaintiff Charles O. Caldwell, shows simply that before any contract was entered into-.the defendant made representations (assuming the words “good well” refer to quality) -as to the quality and quantity of the water to come from the well, which was at that time already completed. There is no statement or evidence to show that these representations were more than inducements looking forward to the consummation of a sale of the property. Nor is there a single iota of evidence in the record from which it may be inferred that at the time of or subsequent to the formation of any contract there was an express promise with reference to the quality of the water or the condition of the well.
As -shown by plaintiff’s own statements, the wel was dug and the easing in place before the plaintiffs agreed to purchase the property. What remained to be done was putting a foundation about the well, building the pumphouse, installing the pump, and connecting the line from the pump to the house. This latter work the defendant agreed to do. This was done, and there is no allegation or evidence that the defendant breached any part of this specific agreement.
*403It is elementary that, before one may establish a breach of contract, he must show a promise to be breached.
“* * * a promise in a contract must be stated in such words either oral or written, or must be inferred wholly or partly from such conduct, as justifies the promisee in understanding that the promisor intended to make a promise.” 1 Restatement, Contracts 7, § 5.
Keeping in mind the fact that, insofar as the construction of the well itself was concerned, it had been completed at the time the parties first entered into negotiations relative to the sale and purchase of the property, and the only complaint of a breach is the fact that the water was murky and some seven months after plaintiffs entered into possession of the property the well, as alleged by plaintiffs, caved in, I am unable to discover a solitary shred of evidence of an express promise to do anything in the future to see that the water from the well would not be murky or that the well would not cave in.
It may be that the representations with reference to the well were false or there was a mutual mistake of fact which would create in the plaintiffs a cause of action for redress, but the case before us deals solely with an action for breach of an express agreement.
It may be inferrible from the circumstances surrounding the transaction that there was an implied warranty as to the quality of the water. However, implied warranties of quality as to land are not en-forcible unless set forth in the deed. Steiber v. Palumbo, 219 Or 479, 347 P2d 978.
Since there is a complete failure of proof by plain*404tiffs to establish, any express promise with reference to the doing'of anything to the prior established well, which promise is the 'basis of plaintiffs’ cause of action, I would reverse the judgment.
Justice Rossman concurs in this dissent.