Hyperlawhypertext legal database Pennell v. Mayor of New York 59 N.Y. Super. Ct. 279

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Pennell v. Mayor of New York

59 N.Y. Super. Ct. 279 27 Jones & S. 279 Court N.Y. Super. Ct. Decision date 1891-05-04 English

Contents

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JOSEPH B. PENNELL, et al., Respondents v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Appellants.

Headnote

Action upon contract for clearing wood and, brush from land which was to be flooded by the building of a dam under the Aqueduct Commissioners.
The plaintiffs had contracted to do the work for a consideration which consisted of a certain sum of money and the wood that they might cut and remove for their own benefit. The action was brought to recover upon two causes of action. 1st. To recover the value of about 770 cords of wood that had been cut by them under the contract, and had been wholly lost to them through the act and fault of the defendants in flooding the
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ground cleared by the plaintiffs with water during the time plaintiffs were engaged in the performance of their contract. 2d. To recover the increased cost of clearing off the brush, under the same contract, occasioned by reason of the premature flooding.
The main question presented by the appeal relates to the construction of the contract which required two things to be done. 1st. The land was to be cleared and, 2d. All timber, brush, grass and all other vegetable growth, were to be removed beyond the limits of the land. The work was to be done in the order of precedence approved by defendants’ engineer ; and all the timber and other growth were to be removed or burned, and all the work covered by the specifications was to be done and completed on or before November 1, 1889. The work was completed by the plaintiffs within the time fixed for its completion, and no controversy exists between the parties in that respect. The litigation is confined to the two causes of action specified.
The counsel for defendants claimed and argued that all parts of the contract should be construed in such a way as to give force and validity to all of them, and to all the language used where that is possible, and such is the true rule beyond question; but it is equally true that a clause giving an additional and independent right to one party and imposing a corresponding burden upon the other, cannot be interpolated by the -court. Surrounding circumstances may be considered to explain or define something in the contract that requires explanation or definition, but they cannot be invoked to add something entirely new. In no case has the court, in its consideration or construction of a contract, the right to make a new contract or to add clauses thereto.
Held, that the plaintiffs had until November 1, 1889, to do and complete their work under the contract; and there being no clause or provision therein giving the defendants the right to flood the land before that time, they had no right to interfere with the plaintiffs and their work by doing so; and having so interfered months before that time they were guilty of a wrongful act, for which, if damage ensued therefrom to the plaintiffs, they have a cause of action. The contention of the defendants, that under that clause of the contract “ that all work should be done in the order of precedence approved by their engineer,” he had the right, to order all the wood not only to be cut but to be removed at any time prior to November 1, 1889, and that all that was necessary for that purpose was that a reasonable notice should be given to the plaintiffs, would be a harsh and forced construction of the contract; but it is not necessary to consider and determine that point for no such order or notice was ever given. The letters of April 20th and May 7 th, 1889, relied upon by the defendants in support of this construction, relate only to a clearing of the land, and in view of the clear distinction made by the contract itself between “ clearing” and “ removal,” the letters cannot be so construed as to include, even by implication, an order of removal.
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Eeld, that the record discloses no error that calls for a reversal, nor can it be maintained that the verdict is contrary to the evidence or excessive.
Before Sedgwick, Ch. J., Freedman and McAdam, JJ.
Decided May 4, 1891.
Appeal by defendants from a judgment in favor of the plaintiffs, entered upon the verdict of a jury, and from an order denying defendants’ motion for a new trial.
Kellogg, Rose & Smith, attorneys, and L. Laflin Kellogg of counsel, for respondents, argued :—
There was a fair conflict of evidence in this case on all the issues upon a mass of testimony overwhelmingly in favor of the plaintiff. The case was rightly submitted to the jury and this court will not disturb the verdict, (a) It is well settled that upon a conflict of evidence on a question of fact, rightly submitted to the jury, the court, on appeal, will not grant a new trial, on the ground that the verdict is against the weight of evidence, although they deemed the conclusion reached by the jury erroneous. Winchell v. Latham, 6 Cow. 682 ; Fleming v. Hollenbeck, 7 Barb. 271 ; Adsit v. Wilson, 7 How. Pr. 64 ; Mackey v. N. Y. C. R. R. Co., 27 Barb. 528 ; Stoddard v. L. I. R. R. Co., 5 Sand. 180. Where there is evidence upon a question of fact, the verdict of the jury is conclusive. Conklin v. Thompson, 29 Barb. 219 ; Henlage v. Hall, 33 Barb. 347 ; Lewis v. Blake, 10 Bow. 198 ; Howe v. Stevens, 12 Abb. N. S. 389 ; Morris v. Sherrill, 63 Barb. 31 . (b) As to the first cause of action to recover the value of the wood. The wood lost became the property of the plaintiffs by the distinct terms of the contract made and entered into by the city of New York, through its aqueduct commissioners, in compliance with all the forms of law. This was provided in two separate provisions. “ All the wood cut and removed by the contractors is to become their property, and its value
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is to be considered a part of the compensation for the work done under this contract in accordance with the specifications.” “For the furnishing of all the labor and materials necessary to do all the work herein specified,” the plaintiffs were “to receive in full compensation the following sums of money, which is in addition to the value of the timber which is to remain their property, as previously specified, to wit, $8,975.” The wood claimed for is the wood found and cut on this clearing. There was no dispute upon "the trial upon the following facts: 1st, that the wood was lost; 2d, that the amount of wood lost was 770* cords. This was proved by actual measurement; 3d, that the wood was totally lost beyond recovery by and through the acts of the defendants in erecting a dam which threw the water back upon the work of the plaintiffs, flooded the wood, watersoaked it and scattered it after it had been piled. The only contest made by the defendants upon this point was: 1st, As to the value of the wood. 2d, As to the date of the flood. 3d, As to whether they did not have the right to compel the plaintiffs to take the wood off prior to November 1, 1889. 1st, As to the value of the wood: The. plaintiffs proved the value of this wood to be about $3 to $3.75 per cord at Bog Brook. The defendants’ proof was that the value of the wood was from $1 to $2.25 per cord. The jury found upon this issue in favor of the plaintiffs at the defendants’ highest price. 2d, As to the date of the flooding: This is not material as to the first cause of action. The plaintiffs complain that the flooding began at the time of the erection of the first temporary dam, April 20, 1889. That a second dam was put in about June 1, 1889. The defendants claim that the first dam referred to by the plaintiffs as overflowing their work was of advantage to the plaintiffs and not a loss. The defendants admit that the second dam was staked out
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May 9, 1889. And the date of flooding was July 2, 1889. By the distinct terms of their contract the plaintiffs had until November 1, 1889, to remove this wood, and for any interference therewith by the defendants or loss occasioned thereby the city would be necessarily liable. The defendants admit that they made these obstructions which caused the flooding. It was in their power to have waited until the plaintiffs had. removed their wood or finished their contract. This they seemingly refused to do, hence the loss was their fault and not that of the plaintiffs. 3d, As to the right to compel the plaintiffs to remove the wood prior to November 1, 1889. The plaintiffs, under their contract, had until November 1, 1889, to remove the wood. Neither the city nor the engineer could compel them to remove it faster under the terms of • the contract. The defendants claim that they had this right by virtue of this language of the contract, to wit: “The work must be done in the order of precedence, approved by the engineer.” There is not the slightest evidence in this case but that the plaintiffs did obey that clause in the contract and did the work in the order of precedence, as approved by the engineer. They commenced the work where the engineer directed, and continued until the close of the work. Mr. O’Hern states so specifically. He is nowhere contradicted. The right of precedence in doing particular work could not give a right of expedition on the whole work. This assumed right is further sought to be enforced in violation of the plaintiffs’ rights under their contract by two letters sent by the engineer to the plaintiffs. The first complains of the inadequateness of the force and warns the plaintiffs that they will be flooded if they do not hurry. The second notifies them that it is necessary that they should arrange to clear off the timber in Mud Pond Swamp within the next thirty days. The clause usually found in such con
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tracts referring to the expediting of the work is absent from the present contract, and the city had not the slightest right to indicate or determine the speed with which this work should be done. During the time for the performance of the contract the contractors could not be interfered with, except as to the order in which the work should be done. They had the right to leave their wood upon the premises, and not to have it interfered with 'by any act of the defendants until November 1, 1889. It may be that any negligent act on their part which tended to increase the damage by leaving the wood there unnecessarily, might be taken into consideration by the jury upon the question of the amount of damage. It appears, however, that immediately upon receipt of these notices, though unlawfully given, that the contractors did increase their force and hurry the work along as fast as possible. The evidence states:
"We had about forty men on Bog Brook before April 20, the day of my first notice from Mr. Burbank. After we received that notice we put on every man we could get. I cannot tell *y°u how many we put on. All the men we could hire. We hired every man that came along. We increased our force right along after the notice of May 7.” It was distinctly testified by more than one witness that the plaintiffs made every effort to expedite the work of removing the timber, and did succeed in removing all but 770' cords. All these questions were submitted to the jury under a proper charge from the court; were sustained by a large preponderance of evidence, and the finding of the jury should not be disturbed, (c) As to the second cause of action to recover increased cost of doing the work which was occasioned by the act of these defendants in wrongfully flooding the work. 1st, The liability of the city for the increased cost of work occasioned by the act of the defendants, is well established. Mulholland v. Mayor, 113 N. Y.
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632 ; DuBois v. Delaware and Hudson Railroad Co., 4 Wend. 285 ; Ladue v. Seymour, 24 Wend. 60 ; Sedgwick on Damages, p. 243; Alloman v. Mayor of Albany, 43 Barb. 39 ; Robinson v. City of Brooklyn, Gen. Term Supreme Court, First Dep’t, March, 1876. 2d. The increased costs of this work to the plaintiffs was caused by the direct act of the defendants. It was occasioned by the flooding of the work by the building of a temporary and second dam. This claim is sustained by the uncontradicted evidence of the plaintiff O’Hern. He states distinctly as follows : “The flooding caused by the building of this dam cost us, in addition to what we paid in cutting the wood, $840, which I wouldn’t have paid had it not been for this flat being flooded over.” “I stated to the jury that the increased cost of doing the work caused by this flood and the water that was thrown there by the city was $840. That was the fair value of it. The fair value of doing the work, without the water, would be $840 less.” “ These men that I let the contracts to could see as well as I could that they were going to be flooded out before they got through, and for that reason I had to increase the price for cutting that wood.” “That was the exact amount of increased labor with no profit in it. After the waiter started to come in, all the men had to work in the water, as it raised all the way from—well, I saw them working up to their hips in the water.” O’Hern also says that the water commenced to back up on the 20th day of April, 1889. All the defendants’ witnesses concede that the entire wrork was flooded on July 2, 1889. The plaintiffs distinctly state that these contracts were made when the contracting parties had knowledge of the impending floods, and that the plaintiffs were compelled thereby to pay an increased price by reason thereof. By referring to the dates of these contracts, it will appear—1st, That they are all after the date April 20, 1889, fixed by
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O’Hern as the time of the beginning of the flooding, and all but one after the date fixed by Humbert, when the dam was staked out and work commenced, to wit, on May 9, 1889. These questions upon this branch of the case were allowed to go to the jury, and, upon a large preponderance of evidence, and almost in the absence of any evidence upon the part of the defendants, the verdict was found in favor of the plaintiffs for the full amount.
William H. Clark, counsel to the corporation, and Henry B. Twombly of counsel, argued :—
I. The contention of the defendants that the terms of the contract required the plaintiffs not only to cut but to remove the wood as reasonably required by the engineer is the correct construction of the terms of the contract. The trial judge erred in holding otherwise. The provision in the contract that “ the work must be done in the order of precedence approved by the engineer” means either something or nothing. If the plaintiffs’ contention, adopted and charged by the trial judge, be correct, that they were obliged by said provision merely to commence their work at such places and at such times as the engineer might direct, but that they had until November 1 to complete the work at any and every portion of the land to be cleared, then the clause means nothing. Under this interpretation the contractors might leave any and every portion of the work not done until immediately prior to November 1, thus preventing during all that time not only the erection of the temporary dam, but also the laying of the foundations of the dam No. 1. The clause would thus be of no value whatever to the defendants in the prosecution of the work, and would have to be treated as mere surplusage. But if the contention of the defendants be adopted, the clause in question required the contractors to cut and remove the wood
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as might be directed by the engineer, the only limitation of his power .being that he must give the contractors reasonable time within which the particular work ordered must be done. On the question of reasonable time—Kelly v. Sentenne, Law Journal of March 25, 1891; Bass v. White, 65 N. Y. 565 ; Williams v. Hart, 116 Mass. 513 ; Bowery Nat. Bank v. Mayor, 8 Hun, 224 ; Parks v. Morris Axe Co., 54 N. Y. 586 . The case of Barnard v. Lee, 97 Mass. 994 , held, that “ even when time is not on the face of the contract essential, it may become so by one party notifying the other that it is essential that a thing required to be done by the contract should be done on a particular day, supposing that this notice is reasonable.” This interpretation is consistent with and harmonizes perfectly with the further requirements of the contract that the whole of the work must be done by November 1. The old familiar rule of law that all “ parts of the contract will be construed in such a way as to give force and validity to all of them, and to all of the language used where that is possible.” (Parsons on Contracts, p. *505) would thus be carried out. Coghlan v. Stetson, 19 Fed. Rep. 727 ; Booth v. Cleveland Mill Co., 74 N. Y. 21 . All parts of a contract should be read and effect given to each. Justice and common sense should rule in interpretation. Smith v. Clews, 114 N. Y. 190 . The defendants contend that their interpretation of the contract is the only reasonable -one, and the only one whereby full effect is given to all the terms of the contract. The clause in controversy is “ the work must be done in the order of precedence approved by the engineer.” The word is “ done,” not “begun” or “ prosecuted.” Webster defines “ done ” to mean “ performed, ” “ executed, ” “finished.” Worcester defines “done” to mean “to make an end,” “to conclude.” The plain meaning then of the clause “ The work must be done, etc.,”
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is that the wood and brash must be cut and removed, i. e., the work done, or finished as ordered by the engineer. The contract itself establishes that “ done ” means just this : “ The work to be done consists (1) in clearing all the lands, * * * * and (2) in removing from said lands all such timber, brash, grass, and other vegetable growth thereon beyond the limits of the said city lands.” And in the very section containing the clause in dispute, “all the timber and other growth must be removed or burned, and all the work covered by the specifications must be done and completed on or before November 1, 1889.” One part of the agreement may be resorted to to explain the meaning of the language or expressions of another part. Pensacola Gas Co. v. Lotzes, 2 South. Rep. 609 . The language is to be construed in favor of the comprehensive language over the restricted. Parsons on Contracts, page *501. Where there is a doubt whether given words are used in an enlarged or a restricted sense, that construction should be adopted most beneficial to the promisee. This rule is thoroughly discussed and approved in White v. Hoyt, 73 N. Y. 505 , 511. So also, Hoffman v. Ætna Ins. Co., 32 Ib. 405. But if the clause be ambiguous or doubtful, there is a further legal rule which when applied to the facts in question sustains the city’s contention.
II. The contract in question should be construed with view to “ the surrounding circumstances existing when the contract was entered into, the situation of the parties and of the subject matter of the instrument.” Coleman v. Beach, 97 N. Y. 553 ; French v. Carhart, 1 Ib. 102 ; Blossom v. Griffin, 13 Ib. 569. Nash v. Towne, 5 Wall: 699, was a case where the contract was made by the parties in Milwaukee in the midwinter for the delivery of certain flour on board steamer at Neenah on the Lake, “free on board.” In this case the court held, that evidence of the clos
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ing of the lake by ice was proper, as within the understanding of the parties to the contract, and that “ free on board ” meant delivered on board the ship when the ice should be gone. The court said : “ Courts, in the construction of contracts, look to the language employed, the subject matter and the surrounding circumstances. They are never shut out from the same light which the parties enjoyed when the contract was executed, and in that view they are to place themselves in the sanie situation as the parties who made the contract, and so to judge of the meaning of the words and of the correct application of the language to the things described.” Knowlton v. Oliver, 28 Fed. Rep. 516 ; Dent v. N. A. S. Co., 49 N. Y. 395 . Knapp v. Warner, 57 W. Y. 688, held that: “For the purpose of explaining a written instrument, extrinsic evidence of all the circumstances, the knowledge of which can aid the right interpretation thereof, is admissible.” The surrounding facts in this case clearly tend to support the interpretation put upon the contract by the city. The contract attached to the proposals for bids, under which the plaintiffs put in their bids, showed that the work was for clearing lands, which were to be flooded by the East Branch Reservoir, and the maps referred to therein showed the Dams Nos. 1 and 2, located thereon, also the temporary dam across Bog Brook. The plaintiffs’ own testimony is as follows: Mr. O’Hern testified that he had read over his contract before putting in his bid, and had examined the maps. “I knew that the contract for the work of building Bog Brook Dams Nos. 1 and 2 had been let and the contract signed when I put in our bid.” Mr. Pennell testified that he knew that Paige & Co. had contracted to build Dam No. 1 before they took the clearing job ; that he had examined the map of the land to.be cleared and noticed what provision was designated on it for Dam No. 1: “I am familiar
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with the fact that in order to build a dam across a water-course, a temporary dam is constructed in order to permit the dam to be constructed on the other side of it; I was familiar at the time that I signed this contract with the provisions of the contract, that the work must be done in the order of precedence of the engineer ; I knew that the temporary darn would have to be constructed some time.” The further testimony as to the circumstances surrounding the making of the contract was from the defendant’s witnesses. Paige & Co. began the work on Dam No. 1 on February 21, 1889. The date of the clearing contract is March 27, 1889, and the proposals for said contract are dated February 21, 1889. The progress of the building of Dam No. 1, required the closing of the sluiceway of the temporary dam on July 2. These circumstances plainly show that the clause in question meant, as the defendants contend, that if the progress of the work on Dam No. 1 required that Bog Brook should be completely cleared on July 2, as it did, and the engineer should give the contractors reasonable notice of that fact, as he did, that then the contractors must complete their work in Bog Brook on or before that time, or suffer the consequences. The facts in the cáse show that a reasonable time was allowed the contractors to do this part of the work. The date that the flooding of the Bog Brook swamp began is well established as July 2, by the testimony of .both plaintiffs’ and defendants’ witnesses, Mr. O’Hern’s own statement alone being to the contrary. The total amount of wood cut under the contract was 2,500 cords, and the time allowed was seven months, or 357 cords per month. The wood cut on Bog Brook was 770 cords which on the above ratio it would require two months and five days to cut. But the plaintiffs were given from April 1 to July 2, over three months, and it is in evidence that work was begun on March 20. If
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the trial judge, therefore, had considered the question of reasonable time, he must have found for the defendants.
III. The intent of the parties to the contract was clearly shown by the facts as set forth in point II, supra, to have been that the work was to have been completed as ordered by the engineer, and the court erred in ruling to the contrary in his charge, and in his refusal to charge the defendants’ first five requests to charge. “ If" the meaning of the instrument by itself is affected with uncertainty, the intention of the parties may be ascertained by extrinsic testimony (the development of the circumstances under which the instrument was made), and this intention will be taken as the meaning of the parties expressed in the instrument, if it be a meaning which may be distinctly derived from a fair and rational interpretation of the words actually used.” Parsons on Contracts, p. *565. The case of Smith v. Clews, 114 N. Y. 190 , was as follows: The contract in question was in the following terms: Received jewelry “on approval to show,” etc., and “to be returned on demand.” The court held that the words “on approval,” as ordinarily interpreted, are neither inconsistent with an authority “ to show ” nor an obligation “ to return on demand.” We must, however, presume that the parties intended some meaning by their use, and as the meaning does not appear from the context, we have a case where parol evidence is admissible to enlighten the court and to show the intent of the parties to the contract. The court further held that such evidence was admissible and that a nonsuit was error. White v. Hoyt, 73 N. Y. 512 . In a legal tender case (Woodruff v. Woodruff, 52 N. Y. 53 ), the court held, “We are to assume that the parties made these contracts in good faith and for the praiseworthy object of avoiding litigation, and we must construe their language, if practicable, with a view to this object,
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and in light of such existing facts as the parties are presumed to have known.” Both parties to this contract knew that the temporary dam must be built, and the water forced back to keep it from the foundations of Dam No. 1. They knew that work on Dam No. 1 had been begun, and that Bog Brook must be cleared of timber and brush at once, as it would shortly be flooded. The statement of the plaintiffs to the contrary are interested statements made on the trial, and are not corroborated by the facts, which in this case speak louder than words, (a) The practical interpretation by the parties themselves as to the correct interpretation of the terms of the contract is entitled to great, if not controlling influence, for the reason, among others, that the interest of each party leads him to a construction not favorable to himself. This rule is applied with reference to what was actually done, not what the plaintiff-parties say on the trial was their supposition. In Springstein v. Samson, 32 N. Y. 703 , the court held that when the terms of a contract are ambiguous, the interpretation thereof requires “ the aid of the acts done, and other acts the doing of which are contemplated” to determine the proper meaning. Lyles v. Lesher, 7 West. Rep. 51. The whole testimony of the facts on behalf of the plaintiffs show that they understood the- contract then as the defendants now contend: (6) Applying also the rule that “ a party will be held to that meaning which he knew the other party supposed the words to bear, if this can be done without making a new contract for the parties ” (Parsons on Contracts, page *500), to the facts, and again the contention of the defendants is supported. The engineer in charge saw that the contractors began work first on Bog Brook swamp. He ordered them to hasten on April 20th, and on May 7th, again notified them to “ clear off the timber” in thirty days. The contract was made to prepare
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the way for the building of the Dam No. 1 and the temporary dam, and the clause that the work should be done in the order of precedence as approved by the engineer could have been inserted with no other purpose. “It is a rule of law as well as of ethics, that where the language of a promisor may be understood in more senses than one, it is to be interpreted in the sense in which he had reason to suppose it was understood by the promisee.” Hoffman v. Ætna Ins. Co., 32 N. Y. 405 ; Barlow v. Scott, 24 Ib. 40; White v. Hoyt, 73 Ib. 511. In Raynolds v. Com. Fire Ins. Co., 47 N. Y 605 , the court held that a contract should be given, the “sense in which the person making the promise believed the other party to have accepted it, if he in fact did so understand and accept it.” The intent is to be considered and knowledge of certain facts bearing on intent is competent. In all aspects, then, of the case, by the surrounding circumstances, the plain intent of all parties, and their practical interpretation of the contract, the construction of the contract contended for by the city is shown to be the only just and fair one. If when the intention is ascertained, from extrinsic testimony, it is found that the words will fairly bear the construction which makes them express their intention, then the words will be so construed, and the contract in this sense or with this interpretation will be enforced. Parsons on Contracts, p. *562; Parshall v. Eggert, 54 N. Y. 23 .
IV. The court erred in practically directing a verdict for the plaintiffs since the interpretation of the contract in reference to the intent of the parties and the surrounding circumstances was for the jury. “The charge was a direction of a verdict for the plaintiff and in the absence of anything from which it may be implied that the right to go to the jury has been waived, an exception to the ruling of the judge is sufficient to present the objection on appeal
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that there were questions of fact for the jury, and it is not necessary to request that every fact be so submitted.” Vail v. Reynolds, 118 N. Y. 301 . The interpretation of the contract in question should have been submitted to the jury.

This action arose out of a contract made for clearing wood and brush from the land which was to be flooded by the building of certain dams under the general plan for supplying New York city with water, authorized by chapter 490 of the Laws of 1883, and the amendments thereto. The plaintiffs had contracted to do the work for a consideration which consisted of a certain sum of money and of the wood that they might cut and which it was their right to remove for their own benefit. The action was brought by the plaintiffs to recover upon two causes of action (1) to recover the value of about 770 cords of wood cut by them under the contract, but wholly lost to them through the act and fault of the defendants in flooding the ground cleared by the plaintiffs with water during the time the plaintiffs were engaged in the performance of their contract; and (2) to recover the increased cost in clearing off the brush under the same contract occasioned by reason of the premature flooding.

The main question presented by the appeal relates to the construction of the contract. .It required two things to be done, viz.: (1) the land was to be cleared; and (2) all timber, brush, grass and other vegetable growth thereon was to be removed beyond the limits of the land. The work was to be done in the order-of precedence approved by defendants’ engineer, and all the timber and other growth was to be removed or burned, and all the work covered by the specifications was to be done and completed on or before November 1, 1889. As matter of fact the work was

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completed by the plaintiffs by the time fixed for its completion and was accepted by the defendants, and no controversy exists here in that respect. The litigation in this action is confined to the two causes of action specified.

In respect to them the counsel for the defendants has argued that all parts of the contract should be construed in such a way as to give force and validity to all of them and to all of the language used where that is possible, and this is the rule beyond question. But it is equally true that a clause giving an additional and independent right to one party and imposing a corresponding burden upon the other cannot be interpolated by the court. So surrounding circumstances may be considered to explain or define something in the contract which requires explanation or definition, but they cannot be invoked to add something entirely new. Justice and common sense are to rule in the construction and the interpretation of what is written, but neither can be used for purposes of addition. In no case has the court the right or power to make a new contract for the parties.

Judged by these rules, the plaintiffs had until November 1, 1889, to do and complete their work, and there being no clause or provision in the contract giving to the defendants the right to flood the ground before that time, they had no right before said time to interfere with the plaintiffs by doing so, and having so interfered months before the said time, they were guilty of a wrongful act, for which, if damage ensued, the plaintiffs have' a cause of action.

It has been strenuously insisted that, under the clause that all work should be done in the order of precedence approved by the engineer, the defendants’ engineer had the right to order all the wood not only to be cut, but also to be removed, at any time prior to November 1, 1889, and that all that was necessary

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for that purpose was that a reasonable notice should be given to the plaintiffs. Such a construction of the contract would be a harsh and forced one, but it is not necessary to determine the point for the reason that no such order or notice was given. The letters of April 20th and May 7th, 1889, relied upon by the defendants in support of this contention relate only to the clearing of the land, and in view of the clear distinction made by the contract itself between that term and the term of removal, the letters cannot be stretched so as to include by implication an order of removal.

The issues were submitted to the jury in accordance with the foregoing views. The record discloses no error which calls for reversal, nor can it be maintained that the verdict is contrary to the evidence or excessive.

The judgment and order should be affirmed, with costs.

Sedgwick, Ch. J., and McAdam, J., concurred.

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