106 Mass. 373 | Mass. | 1871
The plaintiff agreed with the defendant, by written contract, to fill with gravel a certain district described in an order of the superior court for the transaction of criminal business, which was issued for the abatement of a nuisance caused by stagnant water. By the terms of the contract, and as a mode of fixing compensation, the amount of gravel deposited in filling it to a fixed grade was to be measured on the ground by the city engineer, whose measurements were to be conclusive. After the work was done, the defendant received two certificates or returns of the city engineer, stating the amount, the last of which purported to be a revision and correction of the first.
It was objected by the defendant, that the certificate of the engineer could not be conclusive, because the measurements were not made by him in person or in his presence.
The validity of this objection depends upon the fair interpretation of this provision in the contract. The written instrument is indeed the sole repository of the agreement of the parties. Its construction is matter of law for the court. If its terms are used in no peculiar or technical sense, or as applicable to a particular kind of business, they must have the meaning usually attached to the words used. But a true interpretation requires that they should be applied to the subject matter, the situation of the parties, and the usual and known course of business. The common meaning of words and expressions, otherwise clear and unambiguous, may thus be modified by paroi, without invasion of the rule which makes the writing the proper and only evidence of the agreement. Thus it was recently held that the word “ published,” in a written contract relating to advertising charts, had no fixed signification which the court could apply to the contract,
The reference in the contract here under consideration is to the city engineer, an officer who is charged with certain defined duties, in the performance of which he usually depends upon the assistance of others. He is referred to, not by name, but by his official title. It is very properly conceded, in the argument of the defendant, that the work required the employment by him of servants and agents; and the question is, how far the work must have been under his direct personal supervision. The measurements are to be made indeed upon the ground, as contra-distinguished from measurements in the pit, or in the carts. But it is too narrow an interpretation to insist that they shall be made by the engineer in person, or in his actual presence. If made in the usual manner, by his assistants, according to his directions ; if subsequently revised by him, so far as the nature of the work would admit, and made the basis of an estimate of quantity depending not wholly on computation ; and if then certified by him to be correct; the jury may properly find that there has been a substantial performance by the city engineer of the duty which by the fair construction of the contract the parties intended. The instructions and rulings of the court upon this point of the case are not open to exception.
The instructions upon this point, as we understand them, and as they must have been understood by the jury, in their application to the facts presented in evidence, and to the points made at the trial, were consistent with the rules and distinctions here stated. It is true, the jury were told that the return of the en
The principal objection remaining to be considered arises also, as we think, from an erroneous interpretation of the ruling. It is urgently insisted, that, while either party might waive a literal compliance with the terms of the contract, neither party could alone waive the performance of his duty by the engineer, so as to substitute in his place another person, whose measurements should be conclusive. And this is true. But the correctness of the ruling, as applied to the facts here, and as connected with the other instructions, is not affected by the proposition. The whole case proceeded upon the theory that it was the estimate of the city engineer which was or was not conclusive. The evidence did not show an attempt on the part of the defendant to substitute any one in his place. On the contrary, the defendant accepted and acted upon his report. No particular instructions were asked upon the distinction now taken; and the jury in fact found, under the instructions which were given, that the engineer substantially performed the duty assumed. It is plain that the waiver, contemplated in the ruling complained of, was not a waiver of the substantial performance of the duty imposed on the engineer, and the substitution of another in his place, but a waiver which had reference to the details of the mode in which he reached the result through the assistance of another. Thus construed, we cannot see that it injured the defendant. The defendant is to be treated as the real and only party in interest; his acts and admissions, whether by express declarations or implied from conduct, are to have full effect in favor of the plaintiff; and it makes no difference that he was acting under the order of the court, in his official capacity, and has the right to look to others for indemnity.
Upon the whole, we cannot see in the instructions and rulings given, or in those refused, any reason for disturbing this verdict.