Walker & Bros. v. Manning

Stockton, J.

— The matter in dispute between the parties, was as to the quality of the work to be done. The plaintiffs claim that they were to put into the lock, masonry of the same quality as that upon the locks at Croton, &c., built under a similar contract, with the same specifications ; and in seeking to introduce testimony of the character of the masonry work at Croton, their aim was to have the jury estimate their damages as to the difference between the cost of such work, and the price fixed by the contract. Of the quality of the work to be done by the plaintiffs, we are not informed, as the specifications have not been made a part of the record. But if the work that had been done at Croton, was such as was required to be done by the contract sued on, no injury could have resulted to either.party by suffering the witness to give evidence of its character and quality. If it was not, then it was *523 proper to exclude tlie evidence, and not permit tlie masonry at Croton to bo adopted, as tlie measure of tlie value of the work to be done by plaintiffs.

It is conceded tliat tbe ivork at Croton was not of tbe quality required by the specifications. Tlie plaintiffs, however, sought to prove further, that it was the understanding of the parties to the contract, at the time of its execution, that the masonry was to be done in a different manner from that contained in the specifications ; and that it was to be of a quality similar to that upon the lock at Croton. "We do not see how this testimony could be at all legitimate. By the contract, it was agreed that the work should be done in accordance with the specifications annexed. The offer of the plaintiffs was to show, that it was the understanding of the parties, that the work should not be done according to the specifications,but different therefrom ; and that it was not to be of the character and quality therein described, but of the character and quality of the work upon the lock at Croton. To have admitted the evidence, would have been a plain violation of the rule, that “ parol contemporaneous evidence is inadmissible to contradict or vary the terms of a valid written instrument.” 1 Greenleaf’s Evidence, section 275. It is contained in the contract, that the work is to be done under the direction of the engineer having charge of the improvement of the Bes Moines river; but no power is conceded to the engineer to do more than change the plan and location of the work — he was not to change the quality or price.

It is claimed that, inasmuch as the witness stated, that he believed the plaintiffs understood that the masonry of the lock walls, was not to be done as specified, that the evidence should have been admitted. By section 2101 of the Code, it is provided that, “ where the terms of an agreement have been intended in a different sense by the parties to it, that sense is to prevail against either party, in which he had reason to suppose the other understood it.” "We do not see that this provision of the statute ap *524 plies to the present case. There is nothing in the testimony from which it can be inferred, that the terms of the agreement have been intended by the parties in a different sense. The witness states that it was not capable of any misconstruction or misunderstanding — that only one construction could be put upon it. The understanding of the plaintiffs that the masonry on the loch walls was not to be done as specified, was not a sense or construction placed by them upon the terms of the contract, but arose from something entirely outside of it; and in this instance, is admitted to have arisen from the fact, that the State had accepted and paid for work of an inferior quality, upon other locks, built under contracts containing the same specifications— in one of which contracts, viz : that for the lock and dam at Croton, one of the plaintiffs was interested.

The question is not, whether the engineer of the State, after the work was completed, would have accepted it, although not done in conformity to the specifications, as the work of inferior quality on the other locks, had previously been accepted and paid for; but it is whether the State might not insist upon the work being finished according to the specifications, and refuse to pay the contract price, except for masonry of the stipulated quality and character. In our view of the matter, there is nothing in the contract or the testimony, to prevent her from so doing; and, as little reason can there be for denying her the right to insist, that in estimating the plaintiffs’ damages, they shall be allowed, as and for their profits, nothing more than the difference between the cost of the stipulated quality of work, and the contract price.

Judgment affirmed.