Rockwell

This is an appeal from an order denying defendant’s motion for a new trial.

The only ground relied on for a new trial was that of newly discovered evidence, and appellant concedes that “There is no question before t'he court on this appeal other than the ruling of the court in denying defendant’s motion for a new trial upon the ground of newly discovered evidence.”

The defendant A. C. Palladme is the superintendent of the Italian-Swiss colony, and entered into a written contract February 24, 1903, with plaintiff, in which plaintiff agreed to bore a well that would furnish three thousand five hundred gallons of water per minute for defendant, for the sum of $550, or, in case it became necessary to bore a second well to get the water required, plaintiff was also to receive the cost of t'he pipe for the second well. It was expressly stipulated that Rockwell must furnish a supply of three thousand five hundred gallons per minute before he should be entitled to any compensation.

Plaintiff under the written contract sunk a well to a depth of one hundred and forty feet, when, in attempting to force down the casing,'it collapsed, and the well was rendered useless.

Plaintiff sunk a…