Geiger v. Kaestner

Mr. Justice Chytraus delivered the opinion of the court. No instruction was given. The defendants tendered six instructions which were all, in our opinion, properly refused. There was a square conflict of fact, in the evidence, whether defendants stopped plaintiff from proceeding with the boring, when he had bored to a depth of three hundred feet and five inches. The jury determined that conflict in favor of plaintiff. The only question remaining is one of law, namely: Under the contract, properly construed, was plaintiff obliged to stop at 300 feet? The construction of contracts is always a question of law for the court. If, according to his contract, plaintiff was obliged to. stop at a depth of 300 feet, the judgment of the trial court is erroneous. The contract provides that plaintiff shall bore a well six inches in diameter down to a depth of 150 feet from the surface and “the remaining depth to be 5" in diameter down to 300' more or less from the surface.” The question is: What is the legal effect of the language “down to 300' more or less, from the surface?” When the parties entered into this contract they did not know at what particular point of depth water, in the required quantity or quality, would be found. “But in such cases parol evidence is not admitted to show that the parties intended to buy and sell a different quantity or amount from that stated in the written agreement.” Cabot v. Winsor, quoted in Shickle v. Chouteau, 10 Mo. App. 241, 245. To admit, in such case, parol evidence regarding what the parties intended would be to add to or vary a written agreement by parol evidence. The authorities seem to be uniform in holding that when the phrase “more or less” follows a figure the idea conveyed is one of estimate of probable distance or amount. The idea of nearness is conveyed, but the idea of fixedness or definiteness is excluded. And, in each instance, it is a question of fact what is a reasonable limit in connection with the subject-matter and surrounding facts and circumstances of the particular instance, which question of fact is, of course, for the jury. Schickle v. Chouteau, 10 Mo. App. 241; Cabot v. Winsor, 83 Mass. (1 Allen), 546, 550; Holland v. Rea, 48 Mich. 218; Chicago v. Galpin, 183 Ill. 399, 408; Harrison v. Talbot, 32 Ky. (2 Dana) 258; Kelly v. Bowker, 77 Mass. (11 Gray) 428. Hence, the proper question of fact to be passed upon by the jury in the present case—the only question of fact properly controvertible—was, whether plaintiff, assuming he was stopped, had bored so much beyond the 300 feet as to have reached what, in this instance, was the reasonable limit allowed by the expression “more or less,” used by the parties in their contract. We are not inclined to say that, in this instance, five inches, the extent to which plaintiff had exceeded the specified figure of 300 feet when he was stopped by the defendants from proceeding any deeper, is the full extent of the reasonable excess the words “more or less” allowed him. Five inches, beyond 300 feet, was regarded by the jury as short of the reasonable excess the contract allowed to the plaintiff. Had he° been allowed to proceed a few inches or a few feet farther he may or may not have struck water. But plaintiff’s performance of his contract, and his right to compensation thereunder, depended upon his striking a specified quantity and quality of water and defendants should not have stopped him at a point short of the depth the contract between the parties contemplated, under the law. The law fixes the rights of parties in case of prevention of performance and plaintiff was entitled to recover under the common counts. We call attention here to what seems to have escaped notice, that is, what was said in Monroe Cattle Company v. Becker, 147 U. S. 47: “It is loose and insufficient pleading to implead a party by initials. The full Christian name is essential.” The judgment of the court below must be affirmed. Affirmed. Mr. Justice Baker dissenting.