For many reasons the judgment of the court below is erroneous. The action is one at law, on a special contract, the plaintiff alleging part pеrformance of the contract on his part, and that of his predecessors in interest, and the preventing of the completion of it by the defendant. The сase has been here repeatedly, the complaint on which the last trial was had being the
seventh
complaint filed in the action. Naturally enough, therefore, certain propositions have become the law of'
*205
the case. Among them that averment and proof of prevention is essential to a reсovery by plaintiff, inasmuch as there is no pretense of the work contracted for having been completed or the contract rescinded. (
For the purpose of overcoming the first of these last-mentioned obstacles, the plaintiff was permitted on the last trial in the court below, against the defendant’s objections, to introduce testimony to the effect that both parties knew at the time of making the contract that the contractors relied, and were compelled by their pecuniary resources to rely, upon the payment by the defendant of the instalments as they became due; and the court below so found. In rightly holding such testimony erroneously admitted, Me. Justice Myeick, speaking for the court, when the case was last under consideration, said: “ Parol evidence of surrounding circumstances may be given to aid in the proper interpretation of an instrument; but where the parties have themselves used words which require no interpretation, where the words are understood, there is no occasion for aid to their proper interpretation or meaning. In this case the parties had, by their contract, clearly expressed two ideas or agreements: First, that the contractors were to perform certain work; second, that the defendant Avas to make payments therefor in instalmеnts. The words as to these agreements are of very plain signification. This court had decided non-payment of instalments was not prevention; therefore, by thе terms of the contract payment Avas not a condition precedent. In order to make payment a condition precedent a clause wоuld have to be inserted, injected into the contract, Avhich the parties themselves did not see fit to place there. It is not in evidence that the partiеs agreed by paroi that the payments should be conditions precedent; but even if they had so agreed, the well-lmoAvn rule Avould apply, that their final conсlusions Avere as they have expressed them in writing.” (10 Pac. C. L. J. 263.)
Of course this testimony Avas introduced, and the finding
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made thereon—the ninth—was made as bearing upon the question of prevention. Neither could have any other bearing. From the findings themselves it is sufficiently obvious that the prevention found by the court below was based upon the facts detailed in the ninth and tenth
findings;
and this becоmes perfectly plain when the evidence is considered, from which it appears that the only attempt made to show prevention was to show the nоn-payment of the instalments by the defendant, the “surrounding circumstances” just alluded to, and suspension of the work by the defendant. In the tenth finding the court found that the defendant
entirely
suspended the work immediately after October 2, 1865. But this finding, as was justly said by Mr. Justice Mtrick in the opinion already referred to, “is not sustained by the evidence. The evidencе is that McLaughlin directed the diminution of the laboring force to but a few men. This he had a right to do according to the express terms of the contract. (
Moreover, there is in this case neither averment nor proof thаt the estimates of the engineer, on which alone, according to the terms of the contract between the parties as proved and found, the defendant was to pay, were made, nor is there any legal cause shown, or attempted to be shown, why such esti
*207
mates were not made. This question has recently bеen before us in two cases, one of which is
Loup
v.
C. S. R. R. Co.
But further аnd beyond all this, the contract declared on by the plaintiff is essentially different from the contract set up by the defendant and proved and found by the court to have been made between the parties; and the respective rights and obligations of the parties under the one are essentially different from what they are under the other.
By the contract stated in the complaint, the obligation of Cox, Meyers & Co. was limited “to the extent of doing, and furnishing materials for, all the grаdation, masonry, and bridging, and all other things necessary and proper to place said roadbed (of the railroad referred to) ready for the cross-tiеs and iron equipment, and no more.” By the contract proved and found their obligation went far beyond this. By that, the work to be done by them was to include all bridges, viaducts, embankments, excavations, road-crossings, culverts, drains, and all other things necessary, usual, and proper to place the part of the railroad described complete for the cross-ties and iron equipment to be placed thereon, and according to certain plans and specifications annexed to the contract and made part of it. The work to be done by them was to be done in the best and most thorough manner, and all that portion of the railroad undertaken to be built by them was to be equal to thе best constructed railroad in the State, and was to be in full compliance with the contract then existing between McLaughlin and The Western Pacific Railroаd Company, and in full compliance with the requirements of the board of directors of that company. It is manifest that performance of the obligations imрosed on Cox, Meyers & Co. by the contract alleged in the complaint would by no means be a compliance with the obligations imposed on them by the сontract proved and found.
Furthermore, the defendants obligations, as well as his rights, *208 are essentially different under the two. The contract proved and found is not alleged in the complaint to have been mаde, is not alleged to have been performed in whole or in part by the jilaintiff, nor to have been broken by the defendant. The alleged contract, for the breach of which the action was brought, was not proved.
Judgment and order reversed and cause remanded for a new trial.
Morrison, C. J., Myrick, J., McKinstry, J., and Thornton, J., concurred.
Petition for a rehearing denied.