McDonough v. Jolly Bros.

Opinion by Mb. Justice Williams, This case depends on the construction of the written agreement entered into by the parties to this action on the tenth day of September, 1892. Prior to that date the appellants had contracted to take up and rebuild a street railroad in the city of Wheeling, and replace the paving disturbed thereby. So much of this work as related to the replacing of the pavement' was sublet to the plaintiff by the written agreement referred to. Among other things this agreement provided that, the Jolly Brothers were to furnish all the materials needed in replacing the pavement, and to deposit it as near to the track of the street railway as could be conveniently done. McDonough was to take the material so furnished and put down the pavement. The contract required him “to prepare all necessary beds of gravel, sand or other material that may be required for said paving, and to do said paving.” The materials were furnished and deposited along the line by the appellants, and taken by McDonough and used in putting down the pavement. But the vitrified brick soon began to settle in different places and the pavement became uneven to such an extent as to attract the .attention of the street railway company and of the city. The appellants sought to.charge McDonough with responsibility for [547] the uneven surface of the pavement alleging that it was due to insufficient tamping of the bed upon which the bricks were laid. The plaintiff then brought suit to recover the contract price of this work alleging that the condition of the pavement was due to a defective foundation with which he had nothing to do, but which had been laid by the appellants before his work could be entered upon. His position was that the broken stone at the bottom had been insufficiently tamped and for this reason had settled unevenly, carrying the pavement with it and causing the unevenness of surface complained of. This work he contended was not covered by his contract or done or attempted by him, but was done by the appellants. Thejr did not deny that the broken stone were put in by them but alleged that under the stipulation in the contract requiring the plaintiff to prepare the “ beds of gravel, sand or other material ” it was his duty to tamp the rough material placed in the bottom of the excavation as a foundation to support the pavement. In order to aid the court and jury in determining which of these conflicting interpretations of the contract was correct the plaintiff offered to show that the words “beds of gravel, sand or other material that may be required for said paving,” had .a definite and well known meaning among persons engaged in the work of paving; and that they did not embrace the putting in or tamping of the coarse material at the bottom, but related to the thin bed of light material placed at the top to receive the blocks or brick of which the pavem,ent was made. -The admission of this offer is the error complained of on this appeal. The words were susceptible of either interpretation. They were words of art. The offer to relieve against the ambiguity growing out of the manner in which they were used in this contract, by showing what they meant in the trade in which they were employed and to which they were peculiar, could not have been rejected without error. It was not an offer to prove a custom but to prove the trade meaning of a trade phrase. Words are to be met with in many trades that would trouble one not familiar with the business to which they are peculiar. The phrase “ open hearth steel ” would carry no idea to one unfamiliar with the manufacture of steel. So the expression “ shoot a well ” or “ agitate a well,” so common in the oil regions, would carry no definite idea to the mind of one who [548] was ignorant of the practical operations incident to the production of oil. When such words or phrases are made use of in a contract, it is often necessary to inform the court and jury of their meaning in the trade or employment to which the contract relates, or of the subject to which they apply, by oral testimony. Place v. Proctor, 2 Penny. 265; M. E. Church v. Clime, 116 Pa. 146; Bank v. Fiske et al., 133 Pa. 241. The evidence was rightly admitted in this case and the judgment is affirmed.