It is reasonably certain that either the plaintiffs father, who was in charge-of the drilling of the well, did not make a proper test for water, in drilling the twenty feet to the rock, or else that he purposely misrepresented to the defendant the actual facts regarding the tests, for when the second well was drilled, a couple of' feet from the first, an abundant supply of water was found before reaching the rock. It is true that it was roily and that there was quicksand, and very likely it was thought, in view of the shallowness of the well, it would be more practicable to dig a well and stone it up, as was done. But if the plaintiff had made the tests and furnished the information in the first instance, as the contract required him to do, the defendant could have then determined whether to proceed with the-drilling or to do precisely what was done after it "obtained the information regarding the supply of water, when the second well was drilled. The statement of the person in charge of the drilling of the well that there was .no water there, or just enough to wet the -drill, when it appears that in the very place water flowed into the well subsequently made at the rate of thirty gallons per hour, seems quite incredible. At all events, I am not willing to say that *461the referee was not justified in finding against the plaintiff upon that question.
Of course, it is unfortunate that .the plaintiff should losé his pay for the extra drilling, but it is unjust that the defendant should pay for something which is worthless and which would probably not have been done had the plaintiff made the tests and given accurate information regarding the presence of water.
I think the referee’s findings are sustained by the evidence, and that the judgment should be affirmed.
Judgment reversed upon questions of law and fact and a new trial ordered before another referee, with costs to appellant to abide event.