#### John Rose *against*Hannah Parker.

in case.

Suit on contract to dig well for $80. (a)Rrfugal to nonsuit as^ne^for er(b)

WRIT of error to the Common Pleas of *Cumberland.*

*Crane,*attorney of plaintiff. *Jeffers,*attorney for defendant.

The first count in the declaration complains, that whereas *H. .Parker,*had retained and employed *Pose, to*dig a well for $80, he undertook and promised that he would dig and make it, with good and proper materials, and in a sound, substantial, and workmanlike manner; and although he did dig the well, yet he did not dig and make it, in a sound, substantial, and workmanlike manner, but. in a slight, -weak, inartificial and unworkmanlike manner, contrary to his promise and undertaking. The second, is on a warranty, and it was not pretended to support it, at the trial.

After the evidence of the plaintiff was closed, the defendant moved for a nonsuit, which was not granted; whereupon a bill of exceptions was tendered and sealed.

*Jeffers*for plaintiff in error, urged.

That the declaration ought to have given notice of the points, in which the defendant had failed ; whereas, it merely states the special agreement, with the general and common breach. 1 *Chit.*322. *Com. Dig. Plead. C.*73, 74. The plaintiff ought to have given notice of the failure, with a request that de*900fendant should repair it. 1 *Esp.*250. Where a request ■ is necessary, it must he a special personal request, at the proper time and place; which is matter of substance, not aided by verdict. 1 *Saun.*32, *note*2.

*The, special contract was, to make a well for $80. A special agreement must be proved, as laid. Here it was not proved at all. There was no evidence of any agreement. *Bull.*45, 145. *Ld. Ray.*735.

*Ewing,*in answer.

The agreement was implied, not express, to do it in a particular way ; but the law is the same, whether the contract is express, or implied. The complaint is, that defendant undertook to dig a well, in a workmanlike manner, and that it is not so done. No notice, therefore, necessary; it need only be given, where the plaintiff is bound, to do some act, previous to, or necessary to the act of the defendant. So are all the cases cited.

A. refusal of a court to nonsuit, is not a ground of reversal on error. This is well settled in *Pennsylvania,*and the Supreme Court of the *United States.*If the defendant intended any advantage from the position he took, .he should have required a charge, which he did not do. But it would not have helped him. The declaration is right in form, as upon an implied contract; and it was-not necessary to support it, by proving an express contract. There is evidence, that the defendant undertook to dig the well, and that he received the compensation, which is sufficient.

*Jeffers.*

The distinction is, that where the declaration lays a specific agreement, for a specific sum, it must be so proved. The defendant is not a well-digger by profession, and is not to answer on an implied engagement, because the work was inartificially done.

(a)

 See *Richardson vs. Lanning, 2 Dutch. 130. Bruen vs. Ogden, 3 Har. 124. Cook ads. Linn, 4 Har. 11. Perrine vs. Hankinson, 6 Hal. 181. The Church vs. Gordon, 2 Vr. 264.*

(b)

*White vs. Potter, Coxe 159. The Associates, &c., vs. Halsey, ante 750. Den, Hoover vs. Franklin, post 850. Haight vs. Morris, 2 Hal. 289. Bacon vs. Sheppard, 6 Hal. 202. Campfield vs. Ely, 7 Gr. 150. Coxe vs. Field, 1 Gr. 216. Bartow vs. Brands, 3 Gr. 248. Perth Amboy Manf. Co. vs. Condit, 1 Zab. 659. Den, Rutherford vs. Fen, 1 Zab. 702, per*Carpenter J. *Mershon vs. Hobensack, 2 Zab. 372, 3 Zab. 580. Den. Elle vs. Young, 4 Zab. 775. Catoir vs. American Life Ins. Co., 4 Vr. 488. Voorhees vs. Woodhull, 4 Vr. 482.*See also *Central R. R. vs. Moore, 4 Zab. 836, per*Elmer *J. Dare vs.*Ogden, *Coxe 91.*

Kirkpatrick C. J.

This is an action on the case, and the declaration contains two counts, not indeed, very artificially, but, I believe, intelligibly drawn. The first, charges, that the defendant, in consideration of $80, paid to him, undertook to dig a well for the plaintiff, and to *901finish it with good and proper materials, and in a sound, substantial, and workmanlike manner; and the second, charges, that the defendant, in consideration of $80, paid to him, undertook to warrant, and did warrant, that a certain well, which he had dug for the plaintiff, should not fail in water for one year; both of which undertakings lie had failed to perform.

*The proof is, in substance, that the defendant did receive from the plaintiff, $80, for digging a well, and that he did dig one for her accordingly; but that he neither dug it so deep as the wells in the neighbourhood, nor finished it with good and proper materials, nor in a sound and workmanlike manner; and that it did, in consequence thereof, fail in water, within one year, and that the plaintiff was obliged to get another dug.

The defendant objects, to this proof, because it does not establish what he calls the special contract, either in the first or second count, and because the court would not overrule it, he takes his bill of exception, which is brought up here with the record. But this objection, I believe, cannot prevail. The evidence is sufficient to enable the jury to draw these conclusions, to wit; that the defendant received a full price, for the digging and finishing of a well, in the manner set forth in the declaration, and that he did not do so. Now, he who undertakes to do a piece of work, for a sound price, paid in lump, undertakes to do it in a complete and workmanlike manner. This the law presumes, and therefore will raise the assumption, upon the receipt of the money. Whether, in this case, the well was so dug and finished, by the defendant, was a question for the jury, upon the whole evidence. And if I were to say my own opinion upon it, I should say they had decided it very justly. The verdict, therefore, I think, undoubtedly, is good upon the first count.

Let the judgment be affirmed.