#### Joseph Connor v. F. L. Trapp, James Refsell, J. B. Brown, Defendants, and The Raleigh Creamery Company, Appellant.

Breach of contract: instruction as to compliance. In an action for damages because of defendant’s failure to construct a well of an agreed diameter, an instruction that substantial compliance with the contract would be the furnishing of a well of the same practical value and character as agreed, and that unimportant deviations not affecting the purpose for which' the well was intended were immaterial was, under the evidence, erroneous.

*Appeal from. Emmet District Court.*— HoN. A. D. Bailie, Judge.

Wednesday, July 12, 1905.

Suit to recover on a verbal contract for the boring of a well, and to recover for certain repairs thereto. There were a verdict and judgment for the plaintiff against the creamery company, from which it appeals.

*Reversed.*

*J. C. Myerly,*for appellant.

No appearance for appellee.

SherwiN, C. J.

The parties entered into a contract for a well which was to- supply the appellant’s creamery with good, clean, pure water. There is a conflict in the evidence as to whether the well was to be a three or four inch one, and as to whether the plaintiff was to furnish therefor a Cook sand point; the decided weight of the evidence supporting the. appellant’s contention on these points. The plaintiff bored the well to a depth of 381 feet. He bored a 4-inch hole over 300 feet of the distance, and the rest of the way *743it was 3 inches. A 3-inch casing was used for the entire depth, making the well, in fact, a 3-inch well. The evidence is conclusive that it did not furnish clear, ’pure water, or water that could be used for creamery purposes at all, until it had stood long enough for the sand to settle, and that the well was eventually abandoned because of the impure condition of the water when first brought to the surface. The court instructed that' a substantial compliance with the contract would be “ the furnishing of a well of the same practical value and character as provided in the contract. Unimportant deviations from the exact terms of the contract, which do not interfere with the purpose for which the well was constructed and to be used, will not prevent a recovery.” Under the evidence in this case, the instruction was clearly erroneous. The appellants either contracted for a four-inch well, or they did not. If they contracted for such a well they were entitled to it, and a three-inch one did not constitute a substantial compliance with the contract, within the meaning of the law. *Fauble & Smith v. Davis,*48 Iowa, 462; *Jackson v.*Creswell, 94 Iowa, 713; *Anderson v. Todd,*8 N. D. 158 (77 N. *W.*599). A contract to bore a well is not substantially performed if the diameter contracted for is not adhered to. I Beach on the Modem Law of Contracts, sections 293-294; *Gillespie Tool Co. v. Wilson,*123 Pa. 19 (16 Atl. 36.)

The seventh instruction is complained of, and we think justly so. It not only required the jury to find that the contract had been breached in several particulars, to defeat the plaintiff’s recovery, but it again directed the jury that a three-inch well would be a substantial compliance with the contract. The evidence was conclusive, as we have seen, that the well did not supply good, clear, pure water, and this was what the plaintiff undertook to furnish; hence the verdict was contrary to the evidence, and should have been set aside.

*744For the errors pointed out, the case is reversed. ■ — ■ *Reversed.*