Bird v. Beckwith

Putnam, J.: It is impossible to read the written contract, under the provisions of which the plaintiff was allowed to recover in this action, without entertaining doubts as to its meaning. It will be observed that it contains no covenant that the defendants will furnish to the plaintiff any particular quantity of stone; or all- the stone his boats would transport. The plaintiff agreed to boat stone for defendants, but the quantity was not stated. It appeared on the trial from the plaintiff’s .testimony, received without objection, that he knew that the defendants were canal contractors and that the stone was to be used$ on their canal work where required. Did the contract bind the [127] defendants to employ the plaintiff to draw stone they required in the progress of their work on the canal, or stone for which the defendants had no use after their work was completed ? It is insisted that the agreement of the defendants to employ the plaintiff “ during the seasons of navigation of 1897 and 1898 ’’.was a covenant to employ him for the whole season of navigation of the latter year. In the Century Dictionary the word “ during ” is defined as follows : “ In the time of; in the course of; throughout the continuance of.” If the parties, in using the word “ during ” in the contract, meant that the defendants should employ the plaintiff to draw stone during the continuance of the season of navigation of 1898, the defendants were liable in the action. But they may have meant, in using the word, “ in the time of ” or “ in the course of j” and if. so the defendants were not liable for failing to employ the plaintiff after they had received all the stone required on their canal contract. In that case the contract must be construed to mean that the plaintiff would draw stone required by the defendants in the course of, or in the time of, the season of navigation of 1897 and 1898. The contract, as so construed, would not compel the defendants to furnish employment to the plaintiff after they had received all the stone required in their work. The written contract was ambiguous. Its construction depended on the sense in which the word “ during ” was used in the instrument. If the parties intended to use the word in one sense the action cannot be maintained, while the word has also one meaning which would compel the defendants to furnish employment to the plaintiff during the whole season of 1898. The doctrine applicable to receiving oral evidence in such a case is stated by Vann, J., in Thomas v. Scutt (127 N. Y. 133-141), as follows: “Evidence to explain an ambiguity, establish a custom or show the meaning of technical terms and the like, is not regarded as an exception to the general rule, because it does not contradict or vary the written instrument, but simply places the court in the position of the parties when they made the contract and enables it to appreciate the force of the words they used in reducing it to writing. It is received where doubt arises upon the face of the instrument as to its meaning, not to enable the court to hear what the parties said, but to enable it to understand what they wrote, as they [128] understood it at the time. Such evidence is explanatory and must be consistent with the terms of the contract.” ' In Petrie v. Trustees of Hamilton College (158 N. Y. 458) the sanie judge said: “ While the court is to construe ‘the contract, if its construction depends upon the sense in which the words were used in view of the subject to which they relate, it is" necessary by proof of collateral facts and surrounding circumstances to place the •court in the position of the parties when they made the contract, so as to enable it to understand the meaning of the words used in reducing it to writing.” (See, also, 2 Am. & Eng. Ency. of Law [2d ed.], 294; Tilden v. Tilden, 8 App. Div. 99; McKee v. De Witt, 12 id. 617.) In Streppone v. Lennon (143 N. Y. 626) it appeared that there was a provision in the building contract that the ■ contractor would do a certain amount of brick work. It was held that the covenant to do brick work might mean simply to do the work* or it might be construed as an agreement also to furnish the brick, and that parol evidence of the conversations of the parties at the time of the making of the contract was competent. So in this case, under the contract, the parties may have intended by using the word “ during ” that the plaintiff should be employed for the whole of the canal navigation of 1898, or merely that the plaintiff should deliver what stone the defendants required “ in the course of ” or “ in the time of ” the season of canal navigation of 1897 and 1898. Parol evidence, therefore, I think was proper hot to contradict, vary or modify the written contract, but -to show what the parties intended — the meaning of the words they used —■ what the written contract in fact was.- I conclude that the referee erred in striking out the testimony of the defendants above referred to, and that for such error the judgment should be reversed, the referee discharged, and a new trial granted, costs to abide the event. All concurred. judgment reversed, referee discharged, and a new trial granted, costs to abide the event.