Camardella v. Holmes

89 N.Y.S. 616 | N.Y. App. Div. | 1904

Jenks, J.:

The parties made a contract in writing whereby the plaintiff agreed, for the sum of eleven dollars and sixty cents per lineal foot,, i “ to excavate and to refill a trench for use in the construction of a sewer,” and “ to furnish all labor and tools, and excavate a trench to the depth required for a solid foundation, estimated,” etc., and “ to protect and erect within said trench all the required sheeting, bracing, bridging and foundation planking, and leave said sheeting within the trench.” The defendants agreed to “ furnish all suitable and proper material and deliver same, as required, along the line of work, to be used * * * in excavating and refilling a trench.” The sole question presented is which of the parties is to pay for the coal used to generate the power in the plaintiff’s engine used by him. in the work of excavation. There is no provision in the agreement, other than those set forth, that has any bearing upon the subject, and hence the determination of the question depends upon a decision whether such coal is within the expression “labor and tools,” which the plaintiff is to furnish, or within “suitable and proper material,” which the defendants are to provide. As between the two, I am clear that the engine falls within the purview of “ labor and tools.” The plaintiff was to do the work, but the instrumentalities thereof are not specified. The engine belongs to him and is used by him in the work, which is labor. Power must be supplied to the engine that it may do the work, and coal supplies the power. If the plaintiff gave the spade to the man who dug, he thereby would furnish labor. The principle is the same if he furnishes the power that works the engine. A tool is a mechanical implement, any implement used by a craftsman or laborer at his work. (Cent. Dict.) It is not required to give to the word a strict technical meaning in this instance.

Coal is certainly not a material within the meaning of the phrase in this agreement. Of course, it is material as distinguished as matter; it is physical, not spiritual. The material referred to in the agreement is that of which the “ sheeting, bracing, bridging, foundation planking,” and the like may be made. As between the two clauses, I have no hesitation in ■ assigning coal to “ labor and tools,” rather than to the material.

The learned counsel for the appellant insists that he was entitled to offer parol evidence. The plaintiff was not permitted to state whether, in figuring on the price or m naming the price, he took the expense of coal into consideration. But there is no reason why he should have testified to his mental processes. He was permitted to testify that he asked one of the defendants: “ What do you want me to figure on ? ” and that Mr. Holmes replied : “ I only want you to figure on supplying the labor and tools, and we will supply all the materials along the job.” It seems to me that the appellant ■obtained all that he wás entitled to. When we examine this testimony, it is nothing more than a reiteration of the terms of the -contract itself, and throws no light whatever upon the written words. It is not a question of what the plaintiff apart thought, or, ¿apart, took or did not take into consideration, but what the parties •agreed upon when their minds met in the contract.

There seems to have been a practical construction of the contract. 'The plaintiff testifies that subsequent to the signing of the contract he had no conversation in reference to the defendants’ paying for -coal; that he did not bring up the question whether Mr. Holmes ■should pay him for the coal, but that after the lapse of some months he said to the defendants: “ Mr. Holmes, under this contract I •do not see why I should pay for coal,” and Mr. Holmes replied: “Well, I don’t know. I should think you ought to. I said: ‘I •don’t know; you see how I am getting out of the contract, and, therefore, I think 1 ought not to pay for coal..’ ” The plaintiff had bought and paid for the coal without question or demur for ■some months, and it would seem that his protest was due to the dis-covery that the contract was not as profitable as hfe had expected.

I think that the judgment should be affirmed, with costs.

All concurred.

Judgment of the Municipal Court affirmed, with costs.