Herrick v. R. Noble & Sons

The opinion of the court was delivered by Redfield, Ch. J. I. The first item in the plaintiff’s account, for furring the walls of the defendants’ house to fit it for lathing, would seem to be included in the contract, unless there was something very decisive, to show that the terms used in the contract might be satisfied short of that. In the body of the contract, the [5] plaintiff undertakes to do “ the furrowing, except for the basement, for the whole house”. And in the specifications, or estimates, we find one item, “ Partitions and furrowing, for the home $45,00”. There is then “ furrowing ceiling”, which might have been regarded as extra, or it might not; at all events, the terms in the body of the contract, “furrowing for the whole house”, must certainly include all that was necessary in the ordinary mode of finishing houses of that description. And when it is considered, that the walls were then ready to receive the finish, we must construe these terms, with reference to this particular house, as including all the furring necessary to finish this house, in the terms of the contract, “ according to the best style and design of the present time, and adapted to such a house and its several parts, and in as good a style and workmanship and finish as any in Burlington”. Now, it is a settled rule of construction of contracts, that where the words used are specific and explicit, parol evidence cannot be resorted to, to show, that the parties used these words in an unusual, and extraordinary sense; as to show, for instance, that by the whole house, the parties meant one room, or only the partitions. I should not be prepared to say, that if the testimony showed that it was the universal practice not to fur such brick walls, that it would afford sufficient ground for limiting the terms “whole house”, so as to exclude these walls; but the testimony given did not amount to that, but only that it was the ordinary and usual mode, though not universal custom. And we do not learn that it was not, in fact, necessary in this house; but the case finds that the brick were so uneven as to require lathing, and furring of course. And as these walls were then open to inspection, it was the plaintiff’s folly to stipulate to do the furring for the whole home, without knowing whether the walls required it. To admit evidence to show that the parties did not so understand it at the time, is merely receiving their declarations to control the common and obvious import of the terms used, when there is nothing equivocal, and is liable to all the objection that lies against any species of oral evidence, to control a written contract. And the case docs not say, that any evidence was given to show a subsequent contract between the parties, that this furring should bo paid for as extra work, which it would no doubt be competent for - the plaintiff to show. [6] But all the evidence in the case was, that the plaintiff, by the request of the defendants, did the work, and there was no evidence tending to show that the parties had any agreement, understanding, or expectation that the expense should be treated as extra work. We think, then, under the state of the evidence, it was improper to submit the construction of the contract, in this particular, to the jury. If it were not the universal custom not to lath brick walls, this workman was bound to know it, and to have inspected the walls of this house, and will now be presumed to have done so. If it were the uniform practice in such cases, not to. lath, then furring for the “ whole house”, does ex vi ten-mini include this, and such testimony is competent to limit and define the terms used. Or, possibly, if the house had not been open to inspection, the parties would be bound by the ordinary import of the words, with reference to the general class of similar objects. Some cases hold one way, upon this last point, and some the other. The more recent cases favor the admission of such evidence. II. In regard to the second point, the terms used are, perhaps, more liable to possible construction; but taken all together, with reference to the subject matter and the situation of the parties, which are all regarded as permissible means of coming at the construction of written contracts, we are inclined to believe the parties did intend to limit the expensiveness of the styles, designs, or patterns, of the finish to the style; and workmanship, and finish of the best houses in Burlington. The expression in regard to Burlington, is not the style of workmanship, but the style and workmanship, and finish, -which seems to me but a recapitulation of the import of the former terms, “ style and design of the present time”. I can have little doubt that the term “ style” was used, in the first instance, as equivalent to “design”, or patterns, and also in the second instance, thus tying it down to Burlington, as to its expensiveness. And as the estimates were already made, it would be natural it should have been done with reference to the region of country, or the vicinity, where they are made. This certainly would be the fair and obvious import of the terms used, unless there were something to show they were used with reference to a different locality. And the fact merely, that afterward they vis [7] ited the cities to see the different styles in use there, could amount to no definite practical construction of the contract, until they took some definite step in selecting a model, which, if they had done, might have been binding upon the parties as a practical construction of the contract, but which they did not do. But the merely going there, is too remote and indefinite in its object and purpose, to amount to any practical construction of the contract. They might have been willing to allow the defendants a wider selection than the contract, even, if he kept within the same expense; or, the defendants might possibly have had in mind that they would look up the very style, which did suit their fancy, and then if it came within the contract, well; if not, they would exercise them right of varying from it as- they did, and the plaintiff might have gone, at defendants’ expense, to enable the defendants to exercise them unlimited selection of the styles of finish, which they had the right to do under the contract But if they chose one more expensive than the estimates, which were, by the contract, made to conform to the best modern style in Burlington, they must pay the difference which the plaintiff now seeks to recover. In either view, it would be needful for the plaintiff’s workman to go, in order to take drawings or descriptions of the model selected. The truth is, that the testimony offered to give a construction to the words of the contract, is altogether more indefinite and equivocal than the words themselves. Had a model been selected and acquiesced in, as coming within the general import of the first contract, it would have afforded great aid in determining the precise import of the contract itself, and I should have little doubt such testimony might have been admitted consistently with the decided cases. Judgment reversed and case r-emanded,