Daly v. Copeland

Opinion by

Head, J.,

An examination of the record presented by this appeal discloses no reversible error. It is true the contract out of which the litigation arose is in writing. It consisted of an offer on the part of the plaintiffs to do certain work, to wit: “In reference to the Woodbury Trust Company’s building and additions to the bank building at Wood-bury, N. J., we propose to set, clean, etc.” The acceptance, also in writing, is as follows: “We accept your estimate of July 22,1915, for Trust Co. and Bank bldg., Woodbury, for the sum of.”

If we consider only the language of the offer, there would be ground for plaintiffs’ claim that the contract did hot embrace the bank building. If we look only at the language of the acceptance, it is clear the bank building was within its terms. It must be reasonably appar-' ent therefore that the writings prepared by the parties created some ambiguity as to the subject-matter concerning which they contracted. Under such circumstances parol evidence has always been admissible to identify the real subject-matter of the contract so that its terms could be properly applied to that subject-matter. On the other hand, if the plaintiffs argue there is no ambiguity as to the subject-matter, it must be because the terms used to describe it in the proposition and in the acceptance are identical.- In that event plaintiffs could not escape the effect of the terms of description contained in the acceptance and then it would be clear the bank building was included within its terms.

Strictly speaking there was no set-off in the case. The defendants undertook to show there had been a partial failure of consideration. Evidence for that purpose has always been admissible even in the case of sealed instruments. Where a contract is entire and there has been a substantial, although not a complete performance, a plaintiff may be permitted to recover, due allowance being made to the other party for the cost or value of the work not done. It is unnecessary to discuss the case further. The assignments of error are overruled.

Judgment affirmed.