Appeal, No. 216, April T., 1960, from judgment of County Court of Allegheny County, No. A 1560 of 1956, in case of Wayne Ferguson and Mark Ferguson, partners, trading as Ferguson Brothers, v. G. W. Burge. Judgment affirmed; reargument refused January 9, 1961.
Allen N. Brunwasser, for appellant.
Harry R. Levy, for appellees.
Before Rhodes, P.j., Wright, Woodside, Ervin, Watkins, and Montgomery, JJ. (gunther, J., absent).
[ 194 Pa. Super. Page 203]
OPINION BY MONTGOMERY, J.
This is an appeal from a verdict and judgment in an assumpsit action commenced by the plaintiffs-appellees to recover on a written and oral contract for the drilling of a water well. Defendant-appellant filed a counterclaim which alleged that the contract was not performed in a workmanlike manner and that plaintiffs-appellees caused damage to his property by cracking a sidewalk while in the process of drilling. The contract specified that the plaintiffs were to drill to a
[ 194 Pa. Super. Page 204]
sufficient depth to produce such water as was available, not to exceed 160 feet except by further agreement of the owner of the property. The consideration was $2.50 per foot, plus an agreed price for casing and pumping equipment, payable upon completion of the well.
There was insufficient water discovered when the original depth contracted for was reached, and the defendant ordered additional drilling to a depth of 375 feet. The well was completed to the new depth on April 1, 1954, and the total charge for drilling, casing, and pumping equipment amounted to $1,354.50. For over one year the well and pump functioned properly and there was no complaint. On May 22, 1955, defendant by letter requested the plaintiffs to credit an enclosed check in the amount of $1,000.00 to his account and promised to pay the balance of $354.50 within 30 days. Shortly after this letter and payment, defendant complained that the well was not producing properly. Explaining the cause of the disturbance to be a cave-in resulting in sediment falling to the bottom of the well and clogging the end of the pipe, a common occurrence, the plaintiffs had the valve cleaned and the pipes raised at their own expense.
After the thirty-day period had elapsed, the plaintiffs demanded payment of the balance and, upon defendant's refusal to comply, they filed suit before an alderman. Judgment was entered for the plaintiffs. An appeal was taken to the County Court of Allegheny County, where a jury trial resulted in a verdict for the plaintiffs in the amount of $471.32, the balance of the account, plus interest.
Defendant advocates the proposition that a written contract to drill a water well, not to exceed a limited depth, to produce sufficient water "as is available" implies a guarantee of a sufficient and continuous ...