Page:North Dakota Reports (vol. 48).pdf/637

 drilled a well having adequate water. The defendant claimed, not only that they had failed to construct a well of the kind agreed upon, but that they had not in fact constructed a well at all. The trial court found that the agreement between the parties was that plaintiffs should sink the well: “to the level of a well then owned by one McGannon, a neighbor of the defendant and that the whole agreement between the parties, including both the writing and the oral agreement, was to the effect that in consideration of the payment of $700 plaintiffs should furnish to defendant a flow well, providing such well could be obtained by sinking the well 50 feet deeper than the said well belonging to the said McGannon, and that if a flow well could not be obtained by going to the depth as stated, then plaintiffs should furnish to defendant 4 pump well that would furnish water suitable for stock and domestic purposes and in reasonable quantities; that the said McGannon well is of a depth of about 1,400 feet, and the well sunk by plaintiffs for defendant was only 1,315 feet; that plaintiffs did not furnish defendant a flow well; that by the terms of the contract plaintiffs guaranteed the well for one year; that plaintiffs did not furnish defendant any kind of a well that furnished suitable water for stock and domestic purposes for one year.”

These findings were specifically approved by this court. 161 N. W. 287. There is no contention, and no evidence tending to show, that the defendant either actually or impliedly accepted the well or consented that the plaintiffs might cease to drill at the depth they had reached. On the contrary, the plaintiffs themselves specifically testified that the defendant was angry when they stopped drilling, and insisted that they drill to a greater depth. They admit that he never accepted the well. They also admit that they made no further attempt, or offer, to complete the work in accordance with the terms of the contract, as that contract was determined to be by the former decision of this court. It appears from the testimony that the land in controversy is situated in a basin where artesian water is obtained at a certain depth. While it is impossible to say under the evidence before us whether an artesian well would or would not have been obtained if the plaintiffs had drilled to the depth agreed upon, the evidence is to the effect that it could not possibly have been obtained at the depth reached by the plaintiffs, but that it might have been obtained if the plaintiffs had drilled to the depth stipulated in their contract. There was no evidence adduced at all as to