#### Lemke, Respondent, vs. Hage, Appellant.

*February 22*

March *15, 1910.*

(1) *Appeal: Review: Questions of fact.*(2-4) *Contracts: Drilling of well: Implied guaranty of success: Custom: Evidence.*(5) *New trial: Newly discovered evidence.*

1. If the evidence upon an issue is conflicting, the verdict of the jury is decisive.

2. A contract to drill a well does not imply that water shall be obtained or that the well will be a success as to either the quantity or quality of the water.

3. In order that a particular custom or usage shall be considered as part of a contract, it must be so well established, uniform, • and notorious that the parties must be presumed to have known it and to have contracted with reference to it; and the proof of such custom must be positive, clear, and satisfactory.

4. A particular custom or usage to the effect that one who undertakes to drill a well is not entitled to compensation unless a reasonably sufficient supply of water is obtained, was not established by the testimony of two witnesses that they followed such practice in their own business.

5. It is not an abuse of discretion to deny a motion for new trial based on newly discovered evidence, where such evidence is merely cumulative.

Appeal from a judgment of tbe circuit court for Erown county: S. D. HastiNgs, Circuit Judge.

*Affirmed.*

Tbis is an action to recover tbe sum of $580.50, alleged to be due for materials and labor furnished in digging, drilling, piping, and constructing a well. It is alleged that tbe agreement for tbe construction of tbe well was made in February, 1902, and that thereby tbe defendant was to pay $1.25 per foot for the drilling where tbe plaintiff furnished tbe piping, seventy-five cents per foot if defendant furnished it, and also $1 per foot for drilling in rock. Drilling was commenced on March 5, 1902, at a spot designated by tbe defendant, and was continued for three or four weeks. At a depth of 120 feet some rock was struck through which the drilling could *179not be continued and the bole was abandoned. Plaintiff testified tbat tbe defendant informed bim tbat be expected a supply of water at a depth of from seventy-five to 100 feet. A new bole was drilled and continued to tbe depth of 480 feet. Plaintiff claims tbat be was unable to drill deeper with bis apparatus and tbat tbe defendant authorized bim to secure a well driller who could continue tbe well, but tbat be refused to allow tbe work to proceed when be learned tbat tbe cost for continuing tbe work would be greater than tbe price agreed upon with tbe plaintiff. Tbe amount claimed is for drilling at tbe agreed charge for drilling, for piping, for a steel shoe, and for pulling out the pipe from tbe first bole. No new agreement was made for tbe drilling of tbe second' bole. Water bad been obtained at various depths and when tbe drilling was stopped, but not in sufficient quantities to supply tbe needs of tbe defendant.

Tbe defendant in bis answer to tbe complaint claims tbat tbe plaintiff failed to furnish bim with a reasonably sufficient ■supply of water, and tbat be is therefore not entitled to any compensation. He alleges tbat it is a custom in Brown county, where tbe well was drilled, tbat a well digger who undertakes to construct a well upon tbe terms on which tbe plaintiff agreed to dig bis well receives no pay for bis work unless a reasonably sufficient supply of water be obtained. Tbe defendant also presents a counterclaim in the sum of $200 for board furnished tbe plaintiff’s employees while they were’working at tbe drilling, for feed furnished for plaintiff’s horse, for fuel furnished and water hauled for plaintiff’s steam engine which was used in drilling the well, and for tbe services of bis son in assisting tbe plaintiff. These, except tbe services of bis son, tbe defendant bad agreed to furnish while the well was being dug.

Tbe jury found tbat tbe plaintiff did not agree to furnish the defendant with a reasonably sufficient supply of water; tbat there was not such a supply in tbe well when tbe plaint*180iff ceased drilling; tbat there was a custom in Brown county,, at the time of the contract, that a well digger should receive no pay for his work unless a reasonably sufficient supply of water was obtained; and that $160 was the value of the board furnished by the defendant to plaintiff, the wood for the engine, and defendant’s services in furnishing water for the engine. Of the various motions made, the court granted the one to change the answer to the question whereby the jury found to the effect that there was a particular custom in Brown county not to pay a well digger for his work unless he furnished a reasonably sufficient supply of water. This action of the court was based on the ground that the evidence introduced by the defendant to establish such a custom’tended only to establish particular instances and wholly failed to show such a custom. Judgment was ordered in plaintiff’s favor.

Upon defendant’s motion for a new trial, several affidavits were presented to the court upon the question of the particular custom regarding paying for well diggers’ work in the event that a reasonably sufficient supply of water was not obtained, but the court denied the motion, holding that the affidavits did not establish a good ground for granting a new trial on such alleged newly discovered evidence. This is an appeal from the judgment in favor of the plaintiff.

For the appellant there was a brief by *'Wigrmn, Martin. & Martin,*and oral argument by *Josepft, Martin.*

For the respondent there was a brief by *Oalldns & Mc-*Gruer, and oral argument by *L. A. Gattains.*

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 *181construct 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 com-*182immity 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.