Snyder v. Noss

Opinion by MAXEY, C. This is a suit upon a drilling contract which is set out in the above statement. A reading of the contract heretofore set out will show that it is an entire contract. The contract sets out just how the well is to be drilled and w-bat the driller is to receive for drilling the same. There are certain things that the owner of the well is to furnish. In fact, the contract is intended to cover the duty of each one of the parties thereto and leave nothing to conjecture or speculation. The plaintiff alleges in his petition that he has performed all of the terms of said contract to be performed on his part, and has completed the well according to the terms and specifications of the contract. It is a familiar rule that where one sues on a contract and relies upon complete performance, he must show that he has performed all of the things to be done by him according to the terms of the contract. This court has decided this question a number of times. In the case of Meek v. Daugherty, 21 Okla. 859, 97 Pac. 557, Mr. Justice Hayes laid down the rule covering entire contracts as follows: “One who seeks to recover the entire contract price for the construction of a wall, under a contract by which the completion of the -wall was a prerequisite to the rights of the party bringing, the action to receive payment of the contract price, must show full performance of the contract before he is entitled to recover.” Applying this rule to the case before us, we find that the contract provides that the well should be drilled to a depth of 3,000 feet; that the 8% inch casing is to be set at 2,340 feet, which was estimated to be the depth of the second salt water sand. The evidence shows, and it is admitted by the -plaintiff on the trial, that the 8% inch easing was set at 1,939 feet. The 6% inch casing was to be used after the 8% inch casing was set, but the 6% inch casing was set at 2,335 feet, five feet short of where the S1^ inch casing was to be set. It is contended by the plaintiff that these changes from the contract were -agreed, to by the defendant, but the evidence in our judgment falls far short of establishing any such agreement. It appears from the evidence that one Reed was employed by the defendant to haul some casing from Okmulgee out to the well, and- that he was there aJbout the time the 8% inch casing was set and agreed to it for the defendant] but there was no evidence offered on the part of the plaintiff to show that Reed had any authority to agree to such changes, and on the trial, the defendant Snydey testified that Reed had no authority to agree to any changes. In fact, he had no authority whatever to make any changes in the contract. Reed testified that he. had no authority to agree to • any changes, and that he did not, in fact, agree to any changes. Under this state of the evidence, we must hold that the plaintiff failed to make proof that the defendant agreed to the setting of the pipe at 1,939 feet. Our statutes provide how a contract in writing may be changed. Section 5081, Comp. Stat. 1921, reads as follows: “Written contract altered, how. A contract in writing may be altered by a con *147 tract in writing, or by an executed oral agreement, and not otherwise.” This contract was not changed by a contract in writing, nor was it changed by an executed oral agreement. It was not even altered by consent of the parties in writing. The evidence shows that Snyder did not know where the 8% inch pipe was set until long after it was set and the well drilled with a smaller hole down to about where it was abandoned. So it could not be contended that it was changed by an executed oral agreement. It is a general rule that where a person sues on a written contract he must show that he has substantial!}' performed the contract according to the terms thereof. And if changes or alterations have been made, he must show an excuse for such alterations before he can recover. In the case of Davidson v. Gaskill, 32 Okla. 40, 121 Pac. 649, Gaskill entered into a contract with Davidson to do certain stenographic work in Davidson’s office from the first of July, 1907, until the coming in of statehood for a certain part of the net earnings of the office between the 1st of July and the 16th of November when Oklahoma was admitted as a state. Gaskill was sick pai*t of the time and furnished a substitute, and about two weeks before the coming- in of statehood Gaskill quit and failed to complete his contract by working up to the 16th. The court held that the contract was entire and indivisible ; that the contract was not fully performed ; that the suit being on an entire and indivisible contract, plaintiff was not entitled to recover; that sickness in the absence of the provision in the contract to the contrary will not authorize a recovery upon an entire and indivisible contract not performed. In the case of Dunn et al. v. T. J. Cannon Co., 51 Okla. 382, 151 Pac. 1167, in the first paragraph of the syllabus the court said: “A contract is entire when its terms, nature, and purposes show that it is contemplated and intended, that each and all of its parts, material provisions, and the consideration are common each to the other and interdependent. The intention of the parties is to be ascertained from the language used, the subject-matter and a consideration of all the circumstances.” This being an entire contract, the plaintiff is not entitled to recover unless he can show substantial performance of the contract according to its terms. If he relies ■upon alterations that were made in the performance of the contract, he must show that they were made in accordance with the rules of law laid down above, and if he relies on such changes he should allege in his petition that the alterations were made in accordance with such rules. But in this case, the plaintiff alleges a full performance of the contract, and when defendant answers and sets up a failure on the part of the plaintiff to fully perform the contract, the plaintiff files a reply in which he admits that there were alterations made in the contract, but alleges that defendant agreed to them. There was a motion to strike, these parts of the reply on the ground that it was a departure. This motion should have been sustained, for the reason that when a plaintiff sues on an entire contract and alleges complete performance he must prove his case, as made, and has no right to set up things in a reply that he ought to have put in his petition. A bad petition cannot be made good with a reply is a maxim of code pleadings that every lawyer ought to know. There was a great deal of testimony introduced on the trial of this ease that it is unnecessary to notice. Under the view of the case that we have arrived at. plaintiff had undertaken to recover for pulling pipe, underreaming and running his pipe, when they were setting the 8% inch casing at 1,939 feet instead of at 2,340 feet as provided in the contract. He also changes for waiting time during this work. In fact, he has charged the defendant with everything that he did in drilling said well that he would have been entitled to if he had completed the well according to the contract. The case of Lane v. Miller Lbr. Co. et al., 101 Okla. 14, 222 Pac. 968, is the latest case construing actions on contract and we have examined it and the facts in that case and the instant case are so different that this opinion in no way conflicts with that case. So under our view of the case, it will not be necessary to notice these various claims for extras, etc. We are compelled to hold, that under the record in this case, the plaintiff having sued on an entire contract and failed to show full performance, he is not entitled to recover, and the case should be reversed and remanded to the trial court, with directions to grant a new trial. By the Court: It is so ordered.