Centenary M. E. Church v. Clime

Opinion,

Mr. Justice Trunkey :

Clime agreed to do all the stone work of the building according to the plans furnished by the architect, and also do all necessary repairing to the old work, for consideration of $4 per perch for the new. Nothing is said of the kind of stone in the writing.

The first story of the building was erected in 1876, roofed, and used for worship until 1883. That story was built of gray stone from Bunting’s quarry, and is the work referred to in the written agreement, to be repaired and pointed. J. W. Bailey had charge of the construction of the work, and after consulting the trustees, made contracts. The defendant furnished stone from Bunting’s quarry for the greater part of the work, but on Clime’s complaint that he was losing time by delay in delivery, stone was furnished from Gorman’s quarry. Thus far the parties agree as to the facts.

Clime testified that the stone from Gorman’s was flinty, dryer, harder, more treacherous and plucky, and that he said to Bailey, “ I want you distinctly to understand that these are not Bunting’s stone; that it will cost me double as much to work this stone as to work Bunting’s.” He replied that the church people would make that all right. And this testimony is uncontradicted.

There was testimony tending to- show that at and before the signing of the instrument, Rudolph and Bailey told Clime that Bunting was to furnish the stone, that Clime knew what that stone was as he had previously worked it, and thereupon he made the contract. The plaintiff was the sole witness to so testify, and on this point he was contradicted by Rudolph and Bailey.

The only assignment of error is, that the court refused to charge that “the plaintiff has failed to establish his claim for extra work in cutting and dressing two thousand feet (superficial measure) of stone at twenty-five cents per foot, amounting to $500, and the jury will disregard it in making up their ver_ diet. All evidence relating thereto is withdrawn from the jury.”

It was not contended in the argument that the point should have been affirmed for any reason other than that the plaintiff's claim involved a contradiction of, or addition to, the terms of the written agreement; and the defendant urged that the testimony was insufficient for reformation of the instrument. Perhaps the evidence was insufficient to reform the instrument; but if it was explanatory of the subject and consistent with what is written and necessary for its interpretation, it was sufficient to submit to the jury. Had the plaintiff demanded a softer stone, easier to work than Bunting’s, the defendant would have understood that it was intended, if not expressed, that the new work should be of the kind of stone which was used in the first story. They would not have been satisfied with a call for stone of like color, more expensive for them to furnish than Bunting’s, even if more profitable for the contractor. That the building had been already partly constructed of stone from a convenient quarry, tends to show that the parties meant it should be finished with stone of the same kind, in absence of evidence to the contrary. That the larger portion was furnished from that quarry before any was obtained from another, is a circumstance immediately following the making of the agreement.

It can hardly be doubted that the parties understood what stone should be furnished and used. A familiar principle is, that the circumstances at the making of the instrument may he proved when by itself it is affected with uncertainty. The intention of the parties may be ascertained by extrinsic testimony, and this intention will be taken as the meaning of the parties expressed in the instrument, if it be a meaning which may be distinctly determined from a fair and reasonable interpretation of the words actually used. If the words are clear, a different contract from that expressed cannot be made by proof of outside circumstances. But when a matter necessarily pertaining to the subject of the contract is unmentioned therein, parol testimony is admissible to ascertain the meaning.

“ It is a rule of interpretation that the intention of the parties to a contract is to be ascertained by applying its terms to the subject matter. The admission of parol testimony for such purpose does not infringe upon the rule which makes a written instrument the proper and only evidence of the agreement contained in it.....It may be shown that a sample to which the terms of the contract are applicable, was exhibited or referred to in the negotiation, and other statements then made may be resorted to.” Accordingly it has been held that in an action on a written contract relating to advertising charts, parol testimony is admissible to show the material of which the chart was to be made, and the manner in which it would be published: Swett v. Shumway, 102 Mass. 365.

The rule of law which forbids parol evidence to be received to contradict or vary a written instrument has reference to the terms of the writing. Evidence to explain the subject matter of an agreement is essentially different from that which varies the terms in which the contract is conceived: Barnhart v. Riddle, 29 Penn. St. 92. Parol evidence is not admissible to alter or contradict what is-written, but is admissible to explain and define the subject of a written agreement: Gould v. Lee, 55 Idem 99.

Parol evidence of the circumstances, and of what was said by the parties as to the stone to be used under tire contract, does not contradict or change any part of the writing, nor does it add another promise, or nullify any of the written terms. The plaintiff was to do the work, the defendant to furnish the stone, and each was bound to perform, one by furnishing and the other by using the kind of stone to which they referred at the making of their agreement.

JHad it been attempted to vary or contradict the terms of the agreement, or to show.that the instrument meant either nothing or something else than is written, then the doctrine so well advanced in the defendant’s argument, would apply with full effect.

Judgment affirmed.

Mr. Justice Gordon dissents.