Lemke v. Hage

Siebbckee, J. The issues litigated between the parties turn largely on the question of whether or not plaintiff contracted to construct a well on defendant’s premises at the stipulated price, with a guaranty that such well would furnish a good and sufficient supply of water for defendant’s farming and domestic purposes. Upon the evidence adduced the jury found that the plaintiff did not expressly agree to [181] construct such a well. Since tbe evidence was in conflict on this issue, tbe verdict is decisive thereof. Defendant claims that a contract to dig a well is an agreement to furnish such a supply of water. In Butler v. Davis, 119 Wis. 166, 96 N. W. 561, it was declared that a contract to drill a well did not imply that water should be obtained or that it would be a success as to quantity or quality. The defendant contends that if the contract to dig the well embodied no such implication, then, under an alleged well-established custom in the well-digging business to the effect that a party who undertook the digging of a well was not entitled to compensation unless a reasonably sufficient supply of water was obtained, plaintiff was required to furnish such a well as part of the agreement. The court received evidence concerning the existence in Brown county of this alleged custom and submitted an inquiry in the special verdict upon this question. The jury answered it by a finding that such a particular custom existed in the county. After verdict the court held that the evidence did not sustain this finding of the jury and changed the answer to this question, thus negativing the existence of this custom. The defendant insists that the evidence was ample to sustain the finding of the jury and contends that the changing of the answer by the court was error. Proof of a particular custom or usage must be positive, clear, and satisfactory. In speaking on this subject, this court, in an early case (Power v. Kane, 5 Wis. 265), declared: “It is not readily adopted by courts,' and the proof of such usage must be clear and explicit, and the usage so well established, uniform, and so notorious that the parties must be presumed to know it, and to have contracted in reference to it.” See, also, Hinton v. Coleman, 45 Wis. 169. An examination of the evidence of the two witnesses testifying on this subject discloses that their information respecting the alleged custom was very indefinite and unsatisfactory, and failed to show that such a custom was “so well established, uniform, and so notorious” that persons of this com182 immity would be presumed to know it and to contract with reference to it. In effect the evidence shows that the witnesses testifying followed such a practice in their own businesses, but it falls far short of showing that persons generally knew of it and contracted with reference to it. We are of the opinion that the court properly held that the jury’s finding that such a particular custom or usage existed was not supported by the evidence. It is contended that the court erred in awarding judgment to the plaintiff on the verdict as amended by the courts for the reason that it fails to determine whether or not plaintiff was justified in abandoning the contract. The plaintiff testified that he proceeded with the construction of the well to the depth of the capacity of his machinery and appliances and so informed the defendant; that defendant assented to his proposal to engage another well digger to proceed with the construction; that he engaged another well digger, but that the defendant refused to permit such digger to proceed with the work at the cost demanded; and that he therefore ceased further efforts to complete the well. The defendant’s denial of the plaintiff’s testimony raised an issue of fact. Since the jury were not requested by their verdict to make a finding on this issue, it must be held to have been determined by the court in accordance with the judgment awarded, under sec. 2858m, Stats. (Laws of 1907, ch. 346). In the light of the conflict of evidence on the question, plaintiff’s testimony is sufficient to support the court’s finding. It is averred that the court erred in denying the motion for a new trial based on newly discovered evidence. The alleged newly discovered evidence bears on the questions litigated and is additional to the evidence produced on the trial. The court’s conclusion that the facts presented were not sufficient to present a good ground for a new trial is well supported. It did not abuse its discretion in refusing a new trial By the Court. — Judgment affirmed.