175 Iowa 159 | Iowa | 1916
Although the record is very large, consisting of something like 527 pages of printed matter, the ultimate questions are few in number, and might well have been presented in from 150 to 200 pages.
On the 7th of October, 1912, the defendant town entered into a contract with plaintiff whereby plaintiff undertook to drill and complete a well for the town at a point to be selected by the town. The contract provided:
“Said well to be 8 inches at the top and continued as such until bed rock is encountered, but in no case less than 100 feet, and not less than 6 inches in diameter at the bottom of the well. In case second party is unable to complete said well so specified because having encountered bed rock at not less than 100 feet, but should bed rock be encountered at a*162 greater depth than 100 feet, then second party shall be allowed to enlarge size of well and pipe to 10 inches in diameter at the top, but in no place less than 6 inches in diameter. Party of the second part agrees to furnish a complete piped well with sufficient water in same that will stand the test of any four-inch cylinder pump with a continual full flow for 10 hours, said pump to be furnished by first party, said test to be satisfactory to first party. Said test to be made by second 'party, without compensation. Second party agrees to complete well by January 15, 1913, and in case said well is not completed by this date, this contract is null and void, and first party has not obligated themselves to second party. It is further agreed that second party is to-furnish all material and pipe except sand point, if one is needed, which is to be placed by second party, and complete well in a workmanship-like manner. All pipe used in the above described well to be standard pipe. First party agrees to pay to second party $3.25 per lineal foot for the eight-inch well and in case it becomes necessary to enlarge to 10 inches at the top first party agrees to pay $4.00 per lineal foot when completed and accepted by first party.”
Defendant contends that, by reason of a conversation had between the parties before and at the time of the signing of the contract, the term “complete piped well” meant that the well should have been piped from top to bottom with iron piping. This, plaintiff denied. He also claimed that, according to custom and usage and the understanding of the trade, the term used in the contract meant no more than that iron piping should be used where necessary to keep out surface water or seepage, and that piping should not be used in going through solid rock, and that piping such as defendant insists upon would have destroyed the usefulness of the well. It is practically admitted that the well was not constructed according to defendant’s contention; and as it was to be drilled and piped according to the terms, of a written contract,, plaintiff,
It will be noted that the phrase, “complete piped well,” is not clear to the ordinary mind. What is a complete well, piped? Is it the equivalent of a well completely piped ? Surely the terms are not equivalent. One means a complete well piped and the other, a completely piped well. In view of this distinction, it is manifest that the term used may have a technical signification among well diggers due to usage and custom, and that testimony of such usage or custom or terminology may be received, not for the purpose of varying or contradicting the contract itself, but explanatory of the term used and identifying the subject matter of the contract. Such testimony is admissible without being pleaded; and it was competent for plaintiff to show without any pleading that such a construction of the contract as defendant was insisting upon would defeat the very objects and purposes of the well, in that it would prevent the flow of water therein and make it impossible for the well to- meet the tests required by the contract itself. There is no real divergence of authority upon the proposition that such usage or custom may be shown, and that it need not be specially pleaded. See Wilson v. Delaney, 137 Iowa 639; Thayer v. Smoky Hollow Coal C., 121 Iowa 121; Coulter Mfg. Co. v. Fort Dodge Grocery Co., 97 Iowa 616; Wood v. Allen, 111 Iowa 97; Sherwood v. Home Savings Bank, 131 Iowa 528; Brody v. Chittenden, 106 Iowa 524. In Wilson’s case, supra, it is said:
“Passing to the other point, it may be conceded that the expression ‘stock cattle’ is not one carrying universal meaning in the sense that necessarily there is thereby presented the same thought in the same way to the minds of all men;*165 but it is matters of uncertainty in the terms, stipulations and conditions of the contract, and not matters of mere definition, that come within the specific performance rule. And where, as here, parties contract with reference to cattle, and in doing so make use of the expression ‘stock cattle,’ and no mistake is alleged, it must be presumed to have been their mutual intent that their expression should be given the meaning common to the understanding of cattle men in general. And, in such view, it cannot be said that by using the expression the parties have involved themselves in any uncertainty as to the terms, etc., of their contract. The trouble is one of definition, alone. And, as related to the situation in hand, upon definition depends no more than the identification of the subject matter of the contract. It follows that there is involved simply an inquiry into the technical or special meaning of the expression used among those who deal in cattle. * * * ‘Parol evidence is always admissible * * * in order to connect the description with the thing intended, and thereby to identify the subject matter, and to explain all technical terms or phrases used in a local or special sense. ’ ’ ’
• Authorities from other states announce the same rule. Globe Ins. Co. v. Moffat Co., 154 Fed. 13; Arkadelphia Lumber Co. v. Asman (Ark.), 107 S. W. 1171; Breen v. Moran (Minn.), 53 N. W. 755.
If such testimony be offered to add to or subtract from a contract or to vary its terms, and it is not merely explanatory in character, doubtless a pleading is necessary; but not so in such cases as the one we have here.
The questions naturally arise: What should the court have said regarding the contract? Should it have told the jury that it meant that the well should be piped from top to bottom with standard iron pipe, in the face of testimony that such a well would not and could not have met the tests required by the contract itself? Or should it have said, as a matter of law, that the contract did not in terms require that the well should be completely piped; but that, if the parties during the negotiations agreed that it should be so piped, and used this phrase as expressive of their desires and purposes, then the jury should find that the well was not constructed in accord with the terms of the contract, and plaintiff should not recover? As a matter of fact, in view of the conflicting testimony, the trial court left it to the jury to say what the parties meant by the term a “complete piped well,” in view of all the other provisions of the contract and the testimony adduced pro and con, and the jury found specially, in answer to a special interrogatory, that the plaintiff furnished and completed a well for defendant sufficient in capacity to furnish a continual flow of water for ten hours by the pump furnished by defendant.
We see no error in the instruction given on the construction of the contract of which defendant may justly complain. 2 Elliott on Contracts, Secs. 1564, 1565; Brown v. M’Gran, 10 L. Ed. (U. S.) 550 (14 Peters 479); Ginnuth v. Blankenship (Tex.), 28 S. W. 828; Coquillard v. Hovey (Nebr.), 37 N. W. 479. Moreover, the defendant asked instructions to the effect that the question of the construction of the contract was for the jury, and it is in no position to complain.
III. Many of the instructions given by the court are challenged largely because, standing alone, they were erroneous. Perhaps some were incomplete in themselves; but counsel must not forget the rule that all the instructions are to be taken
“Plaintiff claims that he constructed and finished in workmanlike manner the well in question, and that it was six inches in diameter at the bottom; that it was cased with pipe in the manner and at all places necessary to permanently prevent all caving and to keep out all foreign and undesirable matters; that it had therein sufficient water to stand a continuous ten-hour test with a continual flow of water during the test, the pump that was furnished by defendant being operated to its substantial full capacity. If you should find from the evidence that these are facts, then you are told that plaintiff had constructed the well in accordance with the terms of the contract and is entitled to recover in this action, providing you find that under the terms of the contract that the well was not to be piped from the top of the well to its bottom. ’1
This was in entire harmony with the other instructions, and there was no conflict. The burden of proving compliance with the terms of the contract in all its parts was properly placed upon the plaintiff by several of the instructions given; and the real issues of fact between the parties were sharply defined in the instructions, and the jury could not have been misled thereby. This same thought is an answer to the complaint made of the court in refusing instructions asked by the defendant. In so far as these were correct, they were given in substance, if not in terms, by the court in its charge. It is useless to set them out in extenso. "We have already referred to them in substance, and the exact points made are met by the prior suggestions in this opinion.