L. O. Madison & Co. v. Danville Mining Co.

Ellison, J. This action is to recover a balance alleged to be due on a contract to furnish to defendants a lot of mining machinery; and to drill two. sixteen inch holes to a depth of two hundred and twenty-five feet, and to case the same where needed. Said machinery to be of first-class workmanship and material. Plaintiff recovered. The petition alleged that the machinery was to be of first-class material and workmanship. The contract introduced in evidence provided that the machinery should be of the same kind as was then being furnished to the ‘'Richland Mining Company,” and evidence of' comparison between that furnished to this defendant and that of the Richland company was admitted, over defendant’s objection. We deem this to be error. [567] The plaintiff must be held to the allegations of his petition and tested by the petition the mining implements and material should have been of “first-class material and workmanship,” regardless of what material was furnished the Richland company. And for the same reason, plaintiff’s first instruction was erroneous in being founded on a state of facts contrary to the allegations of the petition. Bruce v. Sims, 34 Mo. 246; Bank v. Murdock, 62 Mo. 73; Lenox v. Harrison, 88 Mo. 491; Halpin v. School Dist., 54 Mo. App. 371. The defendant also asked and the court refused an instruction which we here set out, since it fully explains in its hypothesis, the facts upon which it is based: “If the jury find from the evidence that the plaintiffs agreed to place the pump in the drill hole to .a depth of two hundred and twenty-five feet, and that the plaintiffs only placed the pump to a depth of two hundred and twelve feet, and that plaintiffs represented to defendant that they had placed the same to a depth of two hundred and thirty-five feet, and defendant was deceived thereby and that defendant, believing said pump to be pumping from a depth of two hundred and thirty-five feet, and failing to drain its working shaft, and defendant from said representation was induced to believe that the said pump failed to drain said working shaft for the reason that the ground between the pump and the working shaft was so compact that the working of said pump would not drain said working shaft, and was thereby induced to drive a drift from the bottom of the working shaft to the drill hole where the pump was placed, then in estimating defendant’s damages, you will take into consideration the necessary cost and expense of driving said drift.’’ This instruction should have been given, since there was evidence upon which to base it. The defend [568] ant, if the matters sought to be put to the jury by this instruction were facts, was led to believe that the hole had been drilled to a depth of two hundred and thirty-five feet, and that the pump had been placed to that depth. Yet, finding that the pump did not relieve the working shaft from water, supposed it was on account of the nature of the earth between the pump and shaft, and for that reason believed the necessity existed to drift from the bottom of the shaft to the pump, when it was discovered that the difficulty was on account of the pump not being to the required depth. Under the circumstances put in the instruction, the plaintiff should be held liable for the cost and expense of “driving the drift.” The court did give, at defendant’s instance, an instruction in general terms, as to damages which should be allowed to plaintiff in case the mining material was not as it was alleged it should be; and in case the pump was not sunk as deep as itshouldhave been. But this instruction did not, in the specific terms to which defendant was entitled, cover the particular damage referred to in the refused instruction. The judgment must be reversed and cause remanded. All concur.