50 N.Y.S. 257 | N.Y. App. Div. | 1898
Lead Opinion
Upon the trial of this action the referee allowed the negotiations of the parties prior to the execution of the written contract, and also their subsequent conduct under it, to be given in evidence on the part of the defendant and under the plaintiff’s objections. He stated that he did not receive it for the purpose of altering or modifying the written contract, and he has found as a fact that the written contract was the only one made between the parties. Nevertheless, he has found that the plaintiff did not complete the well, and has, therefore, dismissed the complaint on the ground that, the contract being an entire one, the plaintiff could not recover anything until he had fully performed it. He has also refused to find that the well was incomplete on account of improper piping, and hence it is plain that he has based his decision on the fact that the well did not go as deep as the contract required. Thus it appears that he must have given a meaning to the word “well” derived from the evidence so taken, and the question is presented whether such evidence was properly received for the purpose of explaining the meaning of that word. The evidence so received was substantially
The written contract further provides that the plaintiff “is to be relieved from all responsibility when he stops drilling,” and it is urged upon us that under this provision he had the right to stop drilling whenever he chose. I am not at all clear what purpose this provision was intended to accomplish, but if it is to indicate that any different well from the ordinary surface water well was to be drilled I think it should be construed as securing to plaintiff the right to determine how far he should drill in the effort to get a different one. But its meaning is so obscure that I have not considered it in the view which I have taken of this case. For the errors above stated, the judgment must be reversed.
Judgment reversed, referee discharged, and a new trial granted; costs to abide the. event.
LANDON and HEBRIOK, JJ., concur.
Dissenting Opinion
It was stipulated by the respective counsel that no evidence was received by the referee for the purpose of varying or adding to the written contract. No point is made by the appellant as to any error in receiving any such evidence. Both parties evidently intended to follow the decision on the former appeal, and have assumed that it was followed.. So I think there is no ruling as to the evidence in that respect that we should consider. The referee found upon sufficient evidence that when the plaintiff stopped work in November, 1887, neither party considered the well completed, and the plaintiff did not claim it was completed, but told
PUTNAM, J., concurs.