Cook v. Littlefield , 98 Me. 299 ( 1903 )

Strout, J.

Exceptions to the admission of certain testimony.

Plaintiff contracted with defendant to build a set of buildings for him. The contract was reduced to writing, but from it it is impossible to ascertain whether the house was to be one or more stories, nor how many or what size the rooms were to be, nor the details of finish. It referred to a plan, which thereby became a part of the contract, and if the two would clearly show how the contract was to be executed, parol proof of previous talk or agreement would be inadmissible. The written contract aud plan would govern. But there was a dispute as to the plan. The plaintiff offered one, and the defendant another and different one. It was for the jury to say which ivas the plan referred to in the contract. The jury apparently adopted the plan offered by the defendant. Even that plan fails to show in detail all that should be done, or was necessary to be done to complete the house and barn. It is evident that the parties contemplated something more than is disclosed by the written contract and the plan. In this condition of the evidence, defendant was allowed to show by the testimony of Nellie Littlefield as follows:—

.Q,. “What, if any, difference was there to be between the rooms of the upper and lower stories, if you know ?

A. The difference in the upper story was simply that there was to be no bath room up stairs. The rooms up stairs were to be the same as the rooms down stairs, except the room over my dining room was to be made for- a kitchen, and- the room over the kitchen up stairs was to be for a sleeping room.”

It does not appear by the exceptions that the actual finish of the rooms did not correspond with this statement, nor if it did not, that the result was not satisfactory to the defendant. Nothing in the exceptions shows that the defendant was in any manner aggrieved by the admission of the testimony, which did not contradict the written contract. Apparently the testimony was harmless. This exception, therefore, cannot be sustained.

Miss Littlefield further testified -that in the negotiation and agreement for the construction of the house, that plaintiff “was to put a balustrade around the bottom (of the piazza) and he left a few of the top pieces, the rail, — I do not know what you call them, — that go on the piazza. They were up there when he left' the house. He was to put a frieze at the top. I also spoke to Mr. Cook about the entrance, where we come in from the entrance of the piazza, what we could have, and we spoke about having a circular work for that, but that wasn’t put in, — it was only just simply the plain frieze that was put in, but Mr. Cook agreed to put the balustrade in. He also agreed to put in the lattice work.”

The plan indicated a piazza, and it would fairly be implied that it was to be finished in a workmanlike manner. The plaintiff apparently so understood it, as he furnished a rail and some top pieces adapted for a balustrade. The talk the witness had with Cook about circular work, etc., is of no moment, as the witness does not say there was any agreement about them. She says he agreed to put in the lattice work, but does not say it was not put in.

The testimony of the carpenter Shea, was in answer to the question, “What was left undone to complete it (the building) according to the plan?” This question to an experienced carpenter was clearly admissible. It confined him to the plan, and what that called for, and he stated what was not done which the plan required. We see no objection to this question, nor to the answer to it.

An independent verbal contract, relating to its subject matter, but not inconsistent with it, may be shown. It does not impair or vary the written contract. Miss Littlefield does not state when the agreement as to balustrade and lattice was made. For aught that appears, it may have been made after the written contract was executed. If so, it was clearly admissible. But if made at that time, as an independent arrangement, it is not inconsistent with the written agreement, and seems in fact consistent Avith defendant’s plan, Avhich shoAvs a piazza, which by necessary implication Avas to be complete and finished, and Avhich Avas so understood by the plaintiff, as he furnished a rail for it.

The case is not obnoxious to the objection of an attempt to vary a Avritten contract by parol evidence of a different understanding at the time it Avas made. Gould v. Boston Excelsior Co., 91 Maine, 214, 64 Am. St. Rep. 221.

Exceptions overruled.