Book v. New Castle Wire Nail Co.

Opinion by

Mr. Justice Mitchell,

There was no attempt made by defendants to show any fraud, accident or mistake in the making of the contract sued upon, nor do we find in the writing any latent ambiguity or uncertainty of subject-matter. Parol evidence was therefore not admissible to vary or control the meaning of the words used, and there was no occasion for the introduction of it to show the circumstances under which the contract was made as explanatory of the meaning of the words. They were ordinary words used in their ordinary sense, and the meaning was to be gathered from the writing. To admit the evidence offered would be only to give the jury an opportunity to rewrite the contract.

The subject-matter of the agreement was the drilling of a well to get water, and the plaintiff’s undertaking was to drill it to the bed rock unless suitable water should be obtained sooner. Let it be conceded that suitable water meant water fit for drinking, nevertheless the guaranty of the plaintiffs does not extend to such water. No doubt both parties expected the bed rock water to be good, but no guaranty was made as to it. Both parties assumed the fact and took the risk of it. The guaranty was “ to get the water from the bed rock,” which is equivalent to “ the bed rock water,” and if the contract had stopped here we do not suppose a claim could be fairly made for any more extended meaning. But the contract continues “ unless we should find good water, acceptable to you, at a less depth,” and appellants argue that the definite article “ the ” in the first clause should be construed to mean the “good ” water specified in the second. But we cannot ascribe so much force to the definite article. The guaranty is to get “ the water from the bed rock,” and the next clause is a condition in relief not in extension of the plaintiff’s duty. It prescribes the condition on which their undertaking to go to the bed rock shall be excused and that condition is the finding of good acceptable water at a lesser depth. If “ the water ” in the guaranty meant already in the understanding of the parties, good water acceptable to the defendants, it would have been unnecessary to specify it as good and acceptable in the next clause. The natural expression would have been “ the water ” repeated, or “ said ” or “such” water. In fact the argument of appellant reverses the true order of construction, and enlarges the guaranty by a clause that was meant to reduce it. If the meaning contended for had been the intention of the parties the order of the words would have been inverted, and the guaranty would have been to get good acceptable water from the bed rock, unless “ the water,” i. e. such water should be found at a less depth. That at least would have been the natural and obvious way of expressing such intent.

The argument is adroitly put as showing a failure by plaintiffs to complete their undertaking, but the real object of the offer of defendants was to write into the contract a most material condition, i. e. that if no good water should be found in or above the bed rock then defendants should pay nothing. It is not in accordance with experience that such a condition should be left unexpressed. A party engaging to have a thing done for him is expected to pay for it, and so universal is this rule that no express promise need be proved and if no price is named the law implies a promise to pay what it is reasonably worth. Any other contract than this is so exceptional that it is hardly supposable that the party whom the law will presume to be liable, will not see to it that the condition which is to relieve him from liability is fully expressed. To insert such a condition into a written contract should require the clearest evidence that such was the actual agreement of the parties and that its omission from the writing was the result of fraud, accident or mistake.

This is not such a case, and the learned judge was right in excluding the evidence.

Judgment affirmed.