Beers v. Schallern

Decided February 7, 1917

North Dakota Supreme Court · decided 1917-02-07

L. Nuessle, Judge. Judgment for plaintiffs. Defendant appeals. This is an action to recover for the price of digging a well. The plaintiff alleges a contract entered into by which the plaintiff agreed to complete the well ready for use for the sum of $1.25 per foot, and alleges that he dug the same to a depth of 385 feet and is entitled to the sum of $481.89, less $9.36, for which he had agreed to credit the defendant, the value of an old pipe.

Cited by 1 later decisions (1 by the Supreme Court) — most recently November 1923

Good law ✅— No negative treatment on recordhow we know

Reversed · Decided 1917-02-07

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Bruce, Ch. J.

¶1(after stating the facts as above). We are satisfied that reversible error was committed in the giving of the instruction complained of, and that a new trial should be ordered. The plaintiff, in our opinion, failed entirely to prove the special contract set out in his complaint, and the defendants’ theory of the case was not instructed upon. The testimony of the defendant was to the effect that the contract between him and the plaintiff was that he should only pay for *49two thirds of the cost of construction, and that of the plaintiff himself proves nothing more. 22 Enc. PI. & Pr. 564.

¶2The judgment of the District Court is reversed and the cause is remanded for further proceedings according to law.