130 Pa. 53 | Pa. | 1889
Opinion,
It is very plain that the parties to this contract had in contemplation that no part of the masonry between Mahaffey and WilLiams’s Run would be first class. It was to be the same as
It was undoubtedly competent for the plaintiff, by parol, to show a new and distinct agreement subsequent to the contract under seal, whereby, upon a new consideration, the original agreement was changed and the plaintiffs agreed to perform additional work, or the same work in a different manner. The rule that extrinsic evidence is not admissible to contradict or alter the written instrument is not thereby infringed: 1 Greenl. Ev., § 308; Malone v. Dougherty, 79 Pa. 53; Collins v. Barnes, 83 Pa. 15. But, in such cases, the special contract will be pursued as far as it can be traced in the intention of the parties.
The work covered by the parol agreement was the same work which was embraced in the special contract. It is alleged simply that it was to be performed in a different way if the engineer required it to be so done, and if the estimate of the“ engineer was not to determine its nature and extent it would doubtless have been so stated. The masonry was to be the same as masonry on the same line between Irvona and Mahaffey, but it was to be paid for as estimated by the engineer in charge during the month. If the work, under the requirements of the engineer, was of a higher class, it was for the engineer to determine and designate the class of work to which it belonged,, according to the usual and customary methods in railroad construction. It is not to be supposed the parties intended that the engineer, in making his estimates from time to time, was to compare in detail the work of 1887 with that of 1886, and that the compensation was to be rated accordingly. The contract provides the price to be paid for second-class work, the nature
Although the character of the work to be performed is described, in a general way, as the same as the masonry between Irvona and Mahaffey, yet it was to be done “ as directed by the engineer of the company,” and in a good and workmanlike manner. Although, as between the contracting parties themselves, the work would be satisfactory if it was the same as the masonry between Irvona and Mahaffey, yet it was required to be done as directed by the engineer. McCauley entered into this contract with notice of the duties and powers of the company’s engineer. He took his chances with the engineer, and was to receive pay as for second-class work. It is conceded that the masonry between Irvona and Mahaffey was second-class work of an inferior quality; but this work, although of the same class, was to be performed in a good and workmanlike manner, as directed by the engineer. First-class work was not contemplated, but, when work of that class was afterwards required, the parties appear to have provided for it in a subsequent parol agreement. How much of this first-class work the engineer directed to be done, and how much was actually performed in pursuance of his direction, was for the engineer to estimate; and his certificate, fairly made, without fraud, was, by the terms of the contract, binding upon the parties. We are of opinion, therefore, that the court erred in throwing this inquiry open to the opinion and estimate of those who casually observed the work, the parties having designated a person for this purpose, a person whose classification of the work and measurement of the amount were necessarily binding in the computation
It is unnecessary, we think, to consider the assignments of error in detail. If we are right in what we have said, the case was tried under a mistaken view of the nature and obligations of the contract. If, at the re-trial, the cause is conducted upon the theory suggested in this connection, the other matters assigned for error cannot arise.
The judgment is reversed, and venire facias denovo awarded.