Blair

This case has been heard three times in the trial court, by a different judge on each occasion. On each of the two earlier trials judgment went for the defendant, but the judgments were reversed on appeal in each instance. (Blair v. Brownstone Oil & Refining Co., 17 Cal. App. 471 , [ 120 Pac. 41 ]; Id., 168 Cal. 632 , [ 143 Pac. 1022 ].) On the trial which last took place judgment was recovered by the plaintiff. The defendant appeals from the judgment and from an order denying its motion for a new trial.

The parties entered into a contract by which Blair agreed to deepen a well for the Brownstone Company at an agreed price for each foot of increase of depth. By the contract the company bound itself to supply to Blair all tools, machinery, and appliances to be used in the performance of his work. Blair had proceeded to a certain stage of the work when its further prosecution was stopped by the refusal of the company to furnish a certain cable needed in his operations and which it was the company’s duty to supply under the clause of the contract binding it'to provide tools and appliances. Blair brought this action, in two counts, to recover from the company for his operations under…