BENJAMIN F. SMITH & another vs. VOSE AND SONS PIANO COMPANY

CONTRACT upon an agreement in writing to recover the contract price for drilling an artesian well upon certain premises belonging to the defendant, a corporation organized under the laws of the State of Maine, and engaged in the manufacture of pianos in Boston. Writ dated October 7, 1903. In the Superior Court the case was tried before Schofield, J. It appeared that the contract was drawn wholly by the plaintiffs, and consisted of a proposition, contained in a letter written by the plaintiffs to the defendant dated February 24, 1903, which was accepted by the defendant. The letter and the acceptance were as follows:

"Vose & Sons Piano Co.,

"158 Boylston St., Boston.

"Gentlemen:

"We herein submit a proposition to drive at your new factory, Massachusetts Ave., Boston, in your boiler room at a place designated by your superintendent, Mr. Vose, a 2 1/2 inch extra strong lap welded pipe, using extra strong couplings, and do the best we can to procure water in the earth above the bed rock for the sum of one dollar ($1.00) per foot. If a sufficient amount of water is not obtained, and we drive a pipe by our steam drilling machine to bed rock, and drill a well not less than six inches in diameter in the bed rock, no charge will be made for the 2 1/2 inch pipe driven, but we are to have the privilege of pulling up the pipe.

"In case a well is drilled by steam power, it will be done in the following manner: — we agree to drive a lap welded pipe not over twelve inches or less than eight inches to the bed rock, then drill in the bed rock a hole not over ten or less than eight inches in diameter, in the bed rock to a depth of ten feet, tapering the hole in the rock to the outside diameter of the six or eight inch pipe.

"If the water and earth formation above is not shut off by the larger pipe driven to the rock, we will drive either six or an eight inch pipe firmly into the tapered hole prepared for it, and after the well is finished, we will furnish Portland cement and cement

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between the inside pipe and the bed rock to keep out the surface water and the sand. Then we will continue to drill a hole not less than six inches in diameter in the bed rock until twenty-five (25) gallons of water per minute is obtained, for the sum of three dollars and seventy-five cents ($3.75) per foot, provided the aforesaid amount of water is obtained within three hundred feet. For over three hundred feet, the price will be four dollars and twenty-five cents ($4.25) per foot.

"This is with the understanding that this proposition is accepted within six days from date, as the prices given are much below our regular price for doing such work, and are given to keep our men at work for a short time, this being our dull season.

"Your Company is to furnish us with steam for our engine and a small amount of coal for forge for sharpening our drills.

"We will make two pump tests of ten hours each, during which time twenty-five (25) gallons of water per minute must be pumped continuously.

"We will furnish all the necessary pipe, fittings, valves, and pipe for steam from your boiler to our engine, and cover the pipes outside the building to keep the steam from condensing.

"Should any accident occur, such as breaking of tools or drilling a crooked hole, to prevent our further drilling before the above stated amount of water has been obtained, no charge will be made for the work done, but we are to have our privilege of drilling another of the same size under this contract.

"As verbally agreed with your Mr. Julian W. Vose, we further agree in case a small amount of water is obtained with the two and one half inch (2 1/2) test well, and if your Company should pump and make use of it, and we drive and drill a six inch well for you by steam power, no charge will be made for the 2 1/2 inch well. Otherwise we are to have the privilege of pulling up the pipe.

"Yours truly,

"B. F. Smith & Bro."

"We accept the above proposition.

"Vose & Sons Piano Co."

The plaintiffs testified that they drilled with a two and a half inch pipe to the depth of one hundred and five feet. This drilling was abandoned, and the plaintiffs then, with a steam drill,

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drilled through sand and clay to a depth of one hundred and forty-one feet, when water was struck flowing at a rate in excess of twenty-five gallons a minute. This water was very salty and had a great deal of sand in it. The defendant was dissatisfied with water of this character as being unsuitable for general use in its business, and made known its dissatisfaction to the plaintiffs. The plaintiffs thereupon continued drilling, driving a ten inch pipe to bed rock at a depth of about one hundred and eighty feet, then drove the pipe four feet into the bed rock, where the drilling became very difficult, as appeared by the fact that one hundred blows with a heavy hammer would not move the sharp edged shoe or cutting band tempered on to the end of the pipe more than one eighth to one fourth of an inch. This the plaintiffs testified shut off the salt water and sand from above. The plaintiffs continued to drill a ten inch hole to a depth of two hundred and twenty feet when salt water again was struck, a witness for the plaintiffs, one Smith, testifying, that they drilled the well about two hundred and twenty feet and found water, but it was salty. The plaintiffs continued drilling, driving a six inch hole to the depth of two hundred and forty feet, when a pumping test was made, and a flow of water was obtained in excess of twenty-five gallons a minute, but it was very salt and the defendant's agent testified that it was absolutely unsuitable for any of the general purposes of the defendant's factory, and of no use to the defendant. The plaintiffs asserted that they had performed their contract, and demanded payment, which was refused by the defendant, who demanded performance.

For the purpose of showing the character of the water to be furnished to the defendant under the contract, the defendant offered to show oral conversations between its agent and an agent for the plaintiffs before the execution of the contract on which the action was brought, the conversations being had with a view to the formation of the contract subsequently made, in which the agent of the defendant told the agent of the plaintiffs that salt water would be unavailable for use in the defendant's business, that it could not be used in the defendant's plumbing plant, and that the water which the defendant required must be fit to be put to the following uses, to wit: to be drunk by the defendant's workmen, to be used by them for washing their persons, to

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be used with pumice stone in rubbing down the varnish on the defendant's pianos, to be used in rubbing with rotten stone, to be used in automatic sprinklers, to be used for sprinkling granolithic floors, where sprinkling was necessary every day on account of the dust, and to be used in the mixing of glue; and that in reply the agent of the plaintiffs undertook to furnish to the defendant water suitable for such purposes. This evidence was excluded by the judge, and the defendant excepted.

The defendant offered to show statements as to the purposes for which the water required by the defendant would be used and as to the unavailability of salt water, substantially identical with those set forth in the exception stated above made by the agent of the defendant to the agent of the plaintiffs, and that the defendant was induced to enter into the written contract which the plaintiffs, being laymen, had prepared and submitted, and upon which the action was brought, by the promise of the plaintiffs' agent that they would furnish water suitable for such purposes. This evidence was excluded, and the defendant excepted.

The defendant offered to show statements regarding the unavailability of salt water for the defendant's uses, and the purposes to which water required by the defendant would be put, substantially identical with those set forth above, which were made by the defendant's agent to the agent of the plaintiffs, and that in reply thereto the latter requested the agent of the defendant to test the water produced by a well constructed by the plaintiffs at the premises of the Star Brewing Company, that well being five hundred and ten feet deep and distant from the defendant's premises fifteen hundred feet, the plaintiffs' agent stating that the water obtained from the well was used by the Brewing Company in making their beer and that it was good enough for the defendant's use; that the agent of the defendant did, as suggested, test the water produced by that well by drinking some of it, and found it fit for that purpose; that thereafter the agent of the defendant said to the agent of the plaintiffs, "If you can furnish water good as the water of the Star Brewing Company, I will make an arrangement with you to have the water," and that the agent of the plaintiffs said that they would furnish water equally good, but they might have to go down into

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the earth more than five hundred and ten feet. This evidence was excluded, and the defendant excepted.

For the purpose of showing the character of the water to be furnished to the defendant under the written contract, the defendant offered to show conversations before the making of the contract, in which the agent of the defendant stated that it could not use salt water for anything, and that if salt water was wanted it could be obtained by an ordinary duplex pump within a few feet of the surface. This evidence was excluded, and the defendant excepted.

For the purpose of showing the character of the water under the written contract to be furnished to the defendant, the defendant offered to show that before the making of the contract the plaintiffs had attempted to induce the defendant to agree to pay as the work progressed, and that the defendant refused to agree to pay anything until water was furnished substantially of the character and kind furnished by the well of the Star Brewing Company. This evidence was excluded, and the defendant excepted.

For the purpose of showing the character of the water to be furnished to the defendant under the written contract, the defendant offered to show conversations between the agents of the respective parties before the making of the contemplated contract in which it was pointed out by the plaintiffs that they might have to go below five hundred feet to get the kind of water required and that the work might cost the defendant two or three thousand dollars. This evidence was excluded, and the defendant excepted.

The judge ruled, generally, that conversations had before the making of the contract were merged in it, that the word "water" must stand there as it was, without explanation of what occurred up to that time, unless it was altered subsequently by some oral agreement, and that the written agreement must stand just as it was. To this ruling the defendant excepted.

Other evidence offered by the defendant was excluded by the judge, and at the close of the evidence the defendant asked for certain rulings which were refused by the judge. The jury returned a verdict for the plaintiffs in the sum of $1,011; and the defendant alleged exceptions, of which those

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not stated above have been made immaterial by the decision of the court.

T. Parker, for the defendant.

A. L. Stinson, for the plaintiffs.

BRALEY, J. Upon omitting other provisions relating to the price and the depth that might be necessary to obtain the stated amount of supply, but not material to the principal question involved, the plaintiffs undertook by their contract "to procure water in the earth above the bed rock" on the defendant's premises by driving in the boiler room of the factory a pipe two and one half inches in diameter, but if a sufficient amount was not obtained then to "drill a well not less than six inches in diameter in the bed rock . . . until twenty-five gallons of water per minute is obtained." They finally procured this volume, but the water was very salt, and generally unsuitable for use in the defendant's business, and, it being common knowledge that water in its natural state either may be fresh or salt in quality, the defendant contends that as the contract failed to designate the ordinary sense in which the parties must have used the term, oral evidence was admissible to explain and remove the uncertainty. Unless fraud or mistake are shown, where the parties have put their contract in writing, there is a conclusive legal presumption, that it contains the entire agreement in which all previous verbal negotiations concerning the subject matter have been merged. Violette v. Rice, 173 Mass. 82. DeFriest v. Bradley, 192 Mass. 346. But if any of the essential terms of the contract when applied to the transaction concerning which the parties dealt becomes ambiguous, oral evidence is relevant and admissible, not to construct a new agreement, but to ascertain what they understood by the one already made. Stoops v. Smith, 100 Mass. 63. Hebb v. Welsh, 185 Mass. 335. Buffington v. McNally, 192 Mass. 198. These familiar principles are undisputed, but the difficulty arises in their application, especially where the agreements are drawn by the parties or their business agents, who fail to use clear and exact language to express their mutual understanding. It was the plaintiffs' interpretation, that they had fully performed their undertaking if the amount of water was procured, even if it was wholly unsuitable either because of saltness or impurity. The

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defendant then offered evidence, that during the preliminary negotiations the agent of the plaintiffs was informed and knew that its object in driving the well was to procure a supply of water for drinking and other uses in its manufactory, for either of which salt water could not be used, and would be unserviceable. This offer also included conversations between their respective agents in which the location of the factory, and the accessibility to salt water, which, if desired, could be obtained at a small expense, was spoken of, as well as a statement by the plaintiffs' agent, that they would furnish water of a quality equally good, when compared with water obtained for another customer, the quality of which was known to the defendant's agent, who thereupon said, that if this were done the defendant would be satisfied. The testimony was excluded, upon the ground that conversations previous to the making of the contract must be held to have been merged, and oral evidence in explanation of the use and meaning of the word "water" therefore was inadmissible. But, while this rule is undoubtedly correct, and should be inflexibly applied where no ambiguity or uncertainty appears, when the parties by the language they have employed leave their meaning obscure and uncertain when applied to the subject matter, then the expressions and general tenor of speech used in the previous negotiations, even if coming as they usually must from one or the other of the parties themselves, are admissible to show the conditions existing at the time the transaction was under consideration. See for illustrations Bradford v. Manly, 13 Mass. 139; Hogins v. Plympton, 11 Pick. 97; Stoops v. Smith, ubi supra; Miller v. Stevens, 100 Mass. 519; Pike v. Fay, 101 Mass. 134; Sweet v. Shumway, 102 Mass. 365; Keller v. Webb, 125 Mass. 88; New England Dressed Meat & Wool Co. v. Standard Worsted Co. 165 Mass. 328; Boak Fish Co. v. Manchester Assurance Co. 84 Minn. 419. Their definition when thus ascertained furnishes the best interpretation of their contract, the construction of which still remains as a question of law for the court. Atwood v. Cobb, 16 Pick. 227, 232. Stoops v. Smith, ubi supra. Bassett v. Rogers, 162 Mass. 47. Lynn Safe Deposit & Trust Co. v. Andrews, 180 Mass. 527, 533. Callender, McAuslan & Troup Co. v. Flint, 187 Mass. 104. Buffington v. McNally, ubi supra. American Malting

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Co. v. Souther Brewing Co. 194 Mass. 89. United States v. Peck, 102 U.S. 64. Smith v. Faulkner, 12 Gray 251, 255.

The evidence, therefore, was excluded wrongly, and as there must be a new trial at which the other questions raised by the exceptions may become immaterial, or be presented in another form, we do not consider them.

Exceptions sustained.