Judgment affirmed in part and reversed in part with directions.
Carl W. Divelbiss, of Phoenix, for appellant.
Wilson & Towner, of Buckeye, for appellee.
De Concini, Justice. Udall, C. J., and Stanford, Phelps, and La Prade, JJ., concur.
De Concini, Justice.
[74 Ariz. 227] Appellant, Gordon Cameron, hereinafter referred to as plaintiff, brought suit against E. L. Sisson, appellee herein and defendant below, in June 1950, for the balance due him on a promissory note and for $ 400 on an open account.
Plaintiff is a well-driller. Defendant is engaged in farming near Gila Bend, Arizona. During 1948, plaintiff drilled and cased two wells for defendant, which wells are referred to as wells # 3 and # 4. The latter was completed by the plaintiff in March of 1948 to a depth of 835 feet and was cased with a 20-inch steel casing. On June 2, 1948, defendant owed plaintiff $ 240 on well # 3 and $ 6520 on well # 4, wherefore he executed a promissory note to the plaintiff for $ 6760 payable in six months. Defendant, to the date of trial, paid $ 1200 [74 Ariz. 228] on this note. After completion of well # 4, defendant installed a pump and pre-irrigated the land which later was used to grow cotton. The water was sweet and good. When he started to irrigate his land in May or June the water turned salty and much sand and large gravel was discharged through the pump. Defendant however continued to use the pump to irrigate his land with the water from well # 4 until September 1948, the end of the cotton season. In May of 1949 defendant hired Billy Dunlap, another driller, to clean the # 4 well. The pump was pulled by Dunlap and
it was discovered that the tail pipe and screen, total length 13 feet, were missing. There is no evidence as to when they dropped off, so it is only a matter of conjecture as to what depth in the well they came to rest. At that time the well had filled up with sand and gravel to the 190-foot level. Billy Dunlap cleaned the well the first day he worked, but the depth to which it was cleaned that day was not shown. On his return the next day the well had again filled up to the 190-foot level. Dunlap worked on the well a day and a half. Plaintiff's theory is that Billy Dunlap in his efforts in cleaning the well, caused the casing to separate, while defendant's theory is that the casing separated before the advent of Billy Dunlap, because the well had filled up to the 190-foot level where the casing was later proved to be separated. Defendant also maintains that the casing separated because of improper welding by plaintiff. There is no evidence that Billy Dunlap's work caused the casing to separate except surmise. The casing may have been separated at the time Dunlap worked on the well.
Defendant testified he didn't say anything to plaintiff about his well being bad until the Spring of 1949 when Dunlap went into the well. Defendant testified that after plaintiff drilled well # 5 for him in June 1949, he asked plaintiff "to set his rig over the hole, clean the hole out, and recover the well, and I would pay all his expenses." Plaintiff denied responsibility and said he wasn't interested in it. Plaintiff's witnesses testified the well could have been saved if handled properly.
In January 1950 defendant had the casing pulled and found it to be separated at 190 feet. He made no more payments on the note because he claimed that the well was worthless because of faulty installation of the casing.
The trial court rendered judgment for the defendant on both of plaintiff's causes of action, and plaintiff appeals to this court from that judgment. The trial court made no findings of fact or conclusions of law so we are at a loss as to the grounds on which plaintiff's claim was denied.
Plaintiff assigns seven errors and predicates his first four on the first cause of action, stating that in this case, failure of consideration is no defense, and, even if it is available as a ...