## Facts

- A well driller and a landowner entered a written contract for drilling a 500-foot, 12-inch water well at $35 per foot, with hourly rates for test holes and slow drilling conditions.
- The contract required an initial $5,000 payment and disclaimed any guarantee as to water quantity or quality.
- While drilling the first well, the crew encountered a steel object in the hole; the obstruction prevented completion, and the parties abandoned that well.
- The parties executed a written compromise agreement that fixed the amount due on the first well at $6,300 and set terms for drilling a new test hole and, if water was indicated, a second well at a reduced rate.
- The compromise agreement expressly incorporated all original contract terms not modified by the compromise.
- A second well was drilled and completed at a different location.
- A dispute arose over the unpaid balance (including the $6,300 amount), and the driller filed a mechanic’s lien and sued to foreclose it.

## Issues

1. Whether the parties’ written compromise agreement was a binding modification (or substitute contract) of the original drilling contract or merely an executory accord.

## Decision

- The Utah Supreme Court affirmed the judgment and foreclosure decree for the driller.
- The court held the compromise agreement was a binding modification (or substitute contract), not an executory accord.
- The modified terms governed the parties’ rights and obligations, and any inconsistent pre-modification rights under the original contract were waived or excused.
- Because the compromise controlled, the driller could not seek recovery on conflicting pricing terms in the original contract for the first well.

## Legal Principles

- An executory accord is an agreement that an existing claim will be discharged in the future by substituted performance; until performance, the original claim is not discharged, and upon nonperformance the creditor may sue on either the original claim or the accord.
- A contract modification governs the parties’ rights and obligations under the contract, and conflicting pre-modification rights are waived or excused.
- Whether a later agreement is a modification/substitute contract or an executory accord depends on the parties’ intent, primarily determined from the language of their written agreements.
- Interpretation of a written contract is generally a question of law subject to independent appellate review.

## Conclusion

The court treated the written compromise as an immediate and binding modification that fixed the amount owed for the abandoned well and controlled the parties’ obligations, thereby waiving inconsistent original terms and supporting foreclosure of the mechanic’s lien based on the compromise arrangement.


Bradshaw v. Burningham, 671 P.2d 196 (Utah 1983)