William J. CROUCH, Appellant,
H. A. PIXLER and H. D. Pixler, dba H. A. Pixler & Son, Appellees.
[83 Ariz. 312] Neil C. Clark, Phoenix, for appellant.
Stokes, Bagnall & Moring, Collidge, for appellees.
This is an action filed by plaintiffs based upon a written contract whereby plaintiffs agreed to drill a well on the land of the defendant. Plaintiffs alleged full performance of the contract, an indebtedness of $2,500 due, and reasonable attorney's fees in accordance with the terms of the contract. Judgment was rendered in favor of the plaintiffs for the sum of $2,500 as damages for the breach of contract and $800 as attorney's fees, and from such judgment and order denying a new trial defendant appeals.
The written contract entered into between the parties was admitted in evidence during the trial, and the portions material to this appeal read as follows:
'3. That said well or wells shall be drilled to depth not to exceed 1,000 feet; when any well has been drilled to a depth of 800 feet then the owner may at any time before its completion stop further thereon by notice in writing to the Contractor.
'5. It is understood by both parties that neither can tell just what will be found underneath the surfact of the earth and that the work of the Contractor hereunder is subject to those conditions which he may find underneath the surface.
'8. As compensation, the Owner shall pay to the contractor for performing his part of this contract the following schedule of prices
'For drilling, casing, perforating, and sanding @ $15.00 per foot. 'said compensation to the Contract shall be paid as follows:
'$5000.00 to be paid on contract when well is 400 feet deep. Balance to be paid when well is completed.
'14. It is understood and agreed no good purpose would result from drilling rock formation in place and the Contractor will not be required to drill rock formation in place deeper than necessary to determine its character.'
The plaintiffs were paid the sum of $5,000 upon completion of drilling to a depth of 400 feet, as provided in the contract, and continued drilling to a depth in excess of 500 feet when they stopped the drilling for the reasons hereinafter set forth, demanding the additional sum of $2,500 from [83 Ariz. 313] the defendants as full payment under the contract.
The first question presented is whether full performance of the contract is a matter of law for the court to construe or one of fact for the jury. The trial court submitted this question to the jury upon two special interrogatories:
Interrogatory No. 1:
'Did plaintiff fully perform all the requirements under the contract in a good ...