Moore v. Pritchett

Fish, P. J. (After stating the facts.) The case turned upon the construction of the contract set forth in the statement of facts; and one of the grounds of the motion for a new trial presents the question whether the court, in instructing the jury as to the legal effect of the contract, properly construed it. In our opinion, the meaning of the instrument is, that whenever the well, without regard to its depth, would furnish a continuous supply of twenty-five gallons of artesian water per minute, either by natural flow to the surface or by the use of a deep-well pump, Moore’s obligation would be complied with, and he would have the right to discontinue boring, whether Pritchett desired him to do so or not, provided he notified Pritchett that the use of a deep-well pump was [442] necessary. This may not be the contract that Prichett desired to enter into, but it seems to us that it is the contract which he actually made; and there was no question that he understood its terms, nor did he contend that he was induced to execute it by fraud, accident, or mistake. When this case was formerly here (116 Ga. 757), the contract was evidently, construed as we now construe it. The court, speaking through Mr. Justice Candler, then said: “The evidence offered by the defendant did not demand a finding that he had complied with his part of the contract on which he sought to recover. By the terms of that contract he was to bore for the plaintiff an artesian well which should furnish, either by natural flow or by the aid of a deep-well pump, twenty-five gallons of water per minute. The evidence showed that this supply of water was not obtained by natural flow, and that no deep-well pump was ever used to ascertain if it could be obtained by that means. Expert testimony was introduce^ to show that if a deep-well pump had been used the supply of water required by the contract could have been obtained; but such testimony is at best but a matter of opinion, and the jury should have been left to determine its probative value.” It follows from what we have said that the court below erred in not granting a new trial. Judgment reversed. All the Justices concur.