Action by appellee, as plaintiff below, against appellant, as defendant below, for compensation for boring a well.
The complaint, to which no demurrer was filed, contained four counts, but the second was eliminated by the giving of the affirmative charge for defendant. The refusal of the court to give such charge for defendant as to each of the other counts is the principal error relied on for a reversal.
The first and third counts sought a recovery under a special contract for boring said well, the only difference between the two being that the latter more fully set out the contract; while the fourth count sought a recovery under the common count for work and labor done at plaintiff’s request in boring said well, etc. Defendant pleaded the general issue with leave to give in evidence any matter that might be specially pleaded. The con
“In July, 1912, I made a contract with defendant to bore him a well, for which he was to give me a mule [which was shown to be worth $125.] The contract was that I was to bore the well for the said mule and defendant was to pay the cost [$3] of moving my well-boring machinery to his place where the well was to be bored, and was to furnish the casing for said well [shown to have been put in by defendant at a reasonable cost of $2.50], I was to bore the well such a depth as would furnish water sufficient for defendant’s use at his house for his family and for his live stock that was kept on his premises. * * * After I moved my well-boring machinery to defendant’s premises for the purpose of boring the well and had set up the-machinery, I made a new contract with defendant for boring the well. Defendant informed me that, after having made the first agreement about boring the well, he had sold the mule he was to give me for said work, but that he presumed I would just as soon have the- money as the mule. To this I assented, and it was then agreed that I was to bore the well and was to receive as compensation 50 cents per foot for boring through dirt and $1 per foot for boring through rock. Nothing was said in this last agreement about the quantity of water I was to furnish. It was simply agreed that I was to get water. I bored the well 72 feet in depth, and 6 of this was through dirt and sixty-six of this was through rock. I bored until I struck water. The day before I quit work on the well, I saw the defendant, * * * and he paid me $10, and he told me that the well did not furnish sufficient water, and to work one more day on it and quit. When this new contract was made, my well-boring machinery had been set up on defendant’s premises preparatory to begin boring under the original contract. Under the new contract, nothing was said about defendant’s paying for the casing of the well, or for the removal of the machinery to his premises.”
The defendant insists that under this evidence he was entitled to the affirmative charge as to count 3 of the complaint on account of an alleged variance between allegation and proof, because the count in describing the special contract sued on, which was the new or modified contract, alleged that under it defendant not only was to pay plaintiff 50 cents per foot for dirt and $1 per foot for rock bored through in sinking the well, but
(1) We cannot so agree. The facts and circumstances are such that the jury might infer that it was the implied intention of the parties that under the new contract — the contract as modified — the defendant was still to pay for the casing of the well and for the removal of the machinery, though nothing was in fact said about either of these things at the time of the modification.
The testimony of the defendant as to the original contract between the parties and as to the facts and circumstances under which it was modified coincides with that of plaintiff. Both agree that under the new or modified contract plaintiff was to get for boring the well, not a mule, as first agreed, but 50 cents per foot for dirt and $1 per foot for rock bored through in sinking the well; and both agree that at the time of this new agreement nothing was said about defendant’s paying for the casing of the well and the removal of plaintiff’s machinery, as had been formerly agreed to — that is, under the contract as originally made. What is to be inferred from their silence as to these matters? May it not be reasonably implied from their failure to make any change in these stipulations of the old contract, which they were merely modifying, that they intended them to remain as there agreed ? In other words, was it not the implied understanding that the old contract was to stand except as to particulars where a change was expressly agreed on ?
(2, 3) As to whether it was or not was a question for the jury, and the court did not err in refusing the affirmative charge as to count 3 on any theory of a variance. Nor did the court err in refusing written charge numbered 7 requested by defendant,- and which asserted that: If the jury believed that “plaintiff and defendant first made a contract for plaintiff to bore the well for a mule, and that afterwards a new contract was made for boring the well in lieu of the old contract, and if thereby the old contract was abandoned, then plaintiff could not recover anything either for moving his machinery or for casing the well, provided you find that plaintiff did not comply with the new contract.”
The charge, we think, was not only calculated to mislead the jury for reasons just adverted to, but was positively confusing
(4) Parties are at liberty to alter or change an executory contract at their pleasure and in any particular they see fit upon no other consideration than mutual assent. — 2 Mayf. Dig. 797, §48.
That the original contract — the terms of which were undisputed — was altered or changed, both parties agree. The extent of that modification only was in dispute, which was clearly a question for the jury to determine.—Swanner v. Swanner, 50 Ala. 66.
The plaintiff also testified, as before seen, that, at the time the new contract was made, “it was simply agreed that he was to get water;” while the defendant testified that, at the time of the making of the new contract, the plaintiff then expressly again agreed to bore the well deep enough to furnish a sufficient supply of water for defendant’s family and live stock, and that by actual test the well bored by plaintiff furnished only 12 or 14 two-gallon buckets ever 12 hours, which was totally insufficient for the purpose mentioned.
(5-8) If the jury believed the testimony of the plaintiff to the effect that under the new contract the stipulations of the old contract as to the quantity of water he was to get were ex
(9) But even if the jury did not believe plaintiff’s version of the new contract, but believed defendant’s version, and also believed that the water gotten was not sufficient to supply defendant’s family and stock, yet, if they believed plaintiff’s testimony to the effect that after he reached water defendant told him to work one more day and quit, then he would also be entitled to
(10) While, it is true that where there is an express .contract the plaintiff cannot resort to an implied one, but- must recover, if at all, on the express agreement, yet this rule is subject to the exception that where the express contract has been fully performed, and nothing remains to be done but the payment of the price in money, then the plaintiff can recover either under the common counts or under a special count on the express contract, or under both. — 5 Mayf. Dig. 206, § 22, and cases cited.
(11-13) Charges 6 and 8 were properly refused, for even though the new contract was as defendant claimed, and even though plaintiff did not fully perform it, yet, if defendant told plaintiff, as plaintiff swears he did, to work one more day and quit, then defendant would be liable.—Mansfield v. Morgan, supra. The character of the new or modified contract between the parties was such that, the deeper the plaintiff bored the well, the more expensive it would be to the defendant, who was to pay for the work, not a lump sum, but according to the number of feet bored; and if, before the plaintiff bored the well to such a depth as to procure the amount of water called for by the contract even under defendant’s version of it, the defendant wanted to stop plaintiff in the work, he had a perfect right to do so, provided plaintiff consented. This would be again changing the contract by mutual consent. Plaintiff testified, as pointed out, that defendant told him, after water was reached in the well, to work one more day and quit. If this be true, which was a question for the jury, then the plaintiff was entitled to recover under the common count found in the complaint. Such a recovery would not, as appellant seems to think, have to be predicated upon an acceptance by defendant of the work, but upon a change or modification of the new contract by mutual consent before it was fully performed, which is entirely permissible, as shown in the authorities cited in the opinion.
.(14, 15) The fact that the court permitted the plaintiff to prove the value of the mule that was, under the first contract between the parties, to be given plaintiff by defendant in return for boring the well, we cannot say, if error, that it was injurious;
(16) The court declined to exclude, on motion of defendant, an answer of a witness for plaintiff to the effect that defendant told him (witness) that he (defendant) thought that with the well bored by plaintiff, and with another well he (defendant) had, he (defendant) could make out. It is insisted that this answer of the witness should have been excluded because it was not responsive to the question from plaintiff’s counsel which called it forth. Granting that it was not responsive, no ground of the motion to exclude raised this point; but the motion was merely a general one not specifying any grounds. Consequently, the point now made can avail appellant nothing.—Eason v. Isbell, 42 Ala. 456; Riley v. State, 88 Ala. 193, 7 South. 149.
We find no error in the record, and the judgment appealed from is affirmed.
Affirmed.