
    Russell M. Whitney and Others, Respondents, v. The City of Olean, Appellant.
    
      Construction of a contract providing foi' the test and provisional purchase of a well by a city.
    
    The owners of a well, known as the Cook well, transferred it to a city, under a contract which provided that the water commissioners of the city should make a test of the city wells-and keep a record of the amount of water pumped from them each and every twenty-four hours; that they would then “put the suction into the Cook well, so called, and shut off all other wells and test the Cook well to determine the difference in the quantity of water produced by the Cook well for ten days over and above that pumped from the present city wells under said test, the test to commence after pumping off the head of water on said Cook well for a period of 48 hours. In cáse under said tests the said Cook well does not average at least one-half million gallons per 34 hours more than- the present city wells, nothing shall be due or payable to first parties, and they or either of them shall be entitled to nothing. The commissioners are to furnish and put the suction pipé in the Cook well, and the expense of said suction pipe and connecting special castings and grading is to be deducted from the price paid for the well, whether said price paid be §1,000 or $3,750.”
    The city wells were twenty-six feet deep and the Cook well was forty feet deep, and it appeared that it would be necessary to lower the suction pumps, which were very heavy and rested upon stone foundations, some six or seven feet, in order to exhaust all the water in the Cook well, and that the expense involved would be between $6,000 and §7,000.
    
      Held, that the construction of the contract presented a question for the court, whether such question was one of law, or one of mixed law and fact, and that in either view the city was not obliged to lower the pumps when making the test of the Cook well;
    That the fact that the guaranteed capacity of the suction pumps was 3,000,000 gallons, while the contract provided for' a possible flow of 4,500,000 gallons, did not establish that it was not contemplated that the test of the Cook well should be made with the pumps as they existed at the time of the- execution of the contract, where it appeared that the guaranteed capacity of such pumps was not their greatest capacity.
    Hardin, P. J., dissented.
    Appeal by the defendant, The City of Olean, from a judgment of the Supreme Court in favor of the plain tiffs, entered in the office of the clerk of the county of Cattaraugus on the 6th day of March, 1899, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 20th day of September, 1898, denying the defendant’s motion for a new trial made upon the minutes.
    
      Prior to the 21st day of-August, 1895, these' plaintiffs made a contract with the defendant’s commissioners to dig a well to supply water for the defendant city and'were engaged in the performance thereof. Upon that day they entered into a new agreement, which is the subject of this action. By that new agreement the former agreement was canceled, and the plaintiffs transferred to the defendant all the right, title or interest in and to the-well, which was partly constructed by them under the former contract and which was called' the Cook well. The contract further, provided : Second parties (defendant’s commissioners) to make a test of the wells from which city water is now taken for a certain time^ as- they deem proper, and to keep a record of how much water is pumped from -them each and every twenty-fotir hours; then they agree to put the suction into the Cook well, so called, and shut off all other wells and test the Cook well to determine the difference in the. quantity of water produced by the Cook well for ten days over and above that pumped from the present city wells under said test, the test to commence after pumping off the head of water on said Cook well for a period of 48 hours. In case under said tests the said Cook well does not average at least one-half million gallons per 24 hours more than the present city wells, nothing shall be due or payable to first parties, and they or either of them shall be entitled to nothing.”
    The contract then provided' that if the excess should be more than 500,000 and under 1,000,000 gallons, the plaintiffs should be paid $1,000. If 3,500,000 gallons or more, $2,750. The contract also provided: “ Special Commissioners are to furnish and put the suction pipe in the Cook well, and the expense of said suction ¡upe and connecting castings and grading is to be deducted from the price paid for the well, whether, the said price paid be $1,000 or $2,750.
    “ It is further agreed that if the said, so-called, Cook well does not produce one-half million gallons of water more than the supply 'from-the present city wells, then, in that event, said parties of the first part shall remove all brick, engines or machinery and material of any kind from the premises, and shall fill up and grade and leave .the premises in as good condition as found before the commencement of said work, all of which shall be done within a period of thirty days from the expiration of the test.”
    Thereafter the defendant tested the city wells, which, were found to produce about 1,000,000 gallons a day. They then transferred the suction from the city wells to the Cook well, so called, and tested that, which was found to produce about 1,200,000 gallons a day.
    The defendant had in its use two suction pumps, one. with the stated capacity of 1,000,000 gallons a day and the other with a stated capacity of 2,000,000 gallons a day. The testimony shows that a suction ¡Dump in its practical working will draw water only about twenty-eight feet. ' These pumps were set down in the ground so that the top of the suction pipe was about seven feet below the surface of the ground. The height of the cylinder, however, from which the twenty-eight feet could be measured, was about eighteen inches above the top of the suction pipe, so that the bottom of the suction pipe would be about thirty-three and one-lialf feet below the surface of the ground. The Cook well was forty feet in depth, while the city wells were only twenty-six feet in depth. It was impossible, therefore, to exhaust the water from the bottom of the Cook well by the use of the suction pump unless the pump was lowered six or seven feet. These pumps were very heavy, weighing, the smaller one, about twenty tons and the larger one about fifty tons. They were placed upon a cemented stone foundation, and the undisputed evidence is that to lower the pumps so that, by the use of the suction, water could be drawn from the bottom of the Cook well, would cost between $6,000 and $7,000. The Cook well was very near the old city well. The change of the suction from the old city well to the Cook well was a matter of much less moment. Some digging was required to be done to keep the suction pipe down to the level of its attachment to the pump, to wit, about seven feet below the surface of the ground, and from the fact that the city wells were only twenty-six feet in depth, it would appear that additional pipe would have to be purchased or used upon the suction of the Cook well. The plaintiffs swear that, while digging the Cook well, one of the commissioners stated to them that they wanted the well deeper because they proposed to lower their pumps.
    This evidence, however, was contradicted by the commissioner. Further facts appear in the opinion.
    
      A. J. Hastings, for the appellant.
    
      Fred L. Eaton, for the respondents.
   Smith, J.:

The tests made by the defendant of the city wells were fairly made. Of this no question is presented by the plaintiffs. That the tests of the Cook well were fairly made, as far as they could be made without lowering the pumps, can, upon the evidence, hardly be questioned. The claim of the plaintiffs, however, is that that test could not fairly be made without lowering the pumps so as to exhaust the water in the Cook well. The defendant contends that the only test required by the contract was by a change of the suction from the city wells to the Cook well, and that no change in the position of the pumps was contemplated. Upon the trial the court ruled with the plaintiffs, and allowed the jury to say whether a fair test, as required by the contract, could be made without lowering the defendant’s pumps, and refused to charge that under the contract the defendant was not required to lower the pumps in making the required test. An exception to this refusal and to the charge of the court upon this subject presents the only question which this court is called upon to determine.

Upon an examination of the evidence in the case, and the questions of law involved, we are of the opinion that the defendant was not required, in making the test provided by the contract, to lower the pumps. This conclusion is reached whether the construction of the contract presents - a question of law for the court* or whether the contract be one of those wherein the intent is to be gathered from collateral circumstances and wherein the construction presents a question of fact. The contract provides that if under “ said tests ” the Cook well does not average one-half million gallons in excess of the city wells, no liability is created against the defendant. The words “ said tests ” are defined in the prior part of the contract. The defendant was to make a test of the city wells from which the city water was taken, and to keep a record of how much water was pumped from them each and every twenty-four hours. Then they agree" to put the suction .into the Cook well, so called, and shut off all other wells, and test the Cook well, to determine the difference in the quantity of water produced by the Cook well for ten days over and above that pumped from the present city wells under said test.” It is difficult to conceive how the city could define more explicitly the test which was to determine its liability. After having made this provision, it could hardly be called upon to negative all other tests. For is it claimed here that anything agreed upon was omitted from this contract. The claim seems to be, because the test provided for by the contract is not as thorough as another test might be, that another clause should be, by the court or jury, written into this contract, providing that the defendant in testing the Cook well should also be required to lower its pumps. The city would, probably, never have executed such a contract. The test was prescribed in view of existing conditions. It is enough, however, that the contract does not so provide. It is the province ■of a court of law to construe contracts — not to make them.

Plaintiffs further urge that it was not contemplated that these tests should be made with the pumps as they then existed, because the test contemplated a possible flow of 4,500,000 gallons, and both pumps together are only of 3,000,000 gallon capacity. But to lower the pumps would not add to their capacity. It may well be that, if they found water in excess of 3,000,000 gallons, they would be willing to add other pumps. But it appears from the evidence that this 1,000,000 gallon pump, as guaranteed, could ' pump about 1,500,000 gallons. In other words, the guaranteed capacity of the pump is not its greatest capacity. The mere fact that these pumps have a guaranteed capacity of only 3,000,000 gallons is not sufficient from which to conclude that it could not at least approximately be ascertained thereby whether the well'would not yield 4,500,000 gallons.

Assume on the other hand that the construction of this contract in view of the surrounding circumstances presents a question of fact. We are still agreed that the facts do not justify the conclusion that the contract requires the defendant to lower these pumps in order to make a fair test of this well. The plaintiffs’ construction of the contract can only be based upon two facts: Fwst, that the water in the Cook well cannot be exhausted without -lowering the pumps; second, that there was a conversation about the time the contract was made showing an intention to lower the pumps. While this last conversation is disputed, we will assume for the argument that it occurred. Fevertheless, the fact remains that while in the contract specific provision was made for the change of the suction, no provision was made for the lowering of those pumps, which would be an all-important provision under the plaintiffs’ theory. Again, the great expense in changing these pumps for a mere test is strong-evidence that it was not contemplated. If the test failed, the work would be wholly lost to the defendant, because its own wells-were only twenty-six feet deep, and its pumps were sufficiently low to exhaust all the water. Prior to this agreement the plaintiffs-were, at a nominal expense, presumptively, testing their wells with a rotary pump. The court correctly charged that the defendant could not be required to make such a test. Would it be reasonable-to hold that it contemplated an exhaustive test, at a cost of $6,000 or $7,000, with its suction- pumps, When it was not required to make an exhaustive test with a rotary pump at a much less-cost ?

Again, it is provided in the contract that the “ Commissioners, are to furnish and put the suction pipe in the Cook well, and the-expense of said suction pipe and connecting special castings and grading is to be deducted from the price paid for the well, whether the said price paid be $1,000 or $2,750.” It will be noticed that the-expense of making the testj explicitly provided for by the contract, is-made a charge against the contractor. Not a word is said about any exjsense for lowering those: pumps. If that had been contemplated as a part of the contract, that part of the expense would naturally have been provided for while providing for the expense of changing the suction. The irresistible inference to be drawn from all the-facts is that both parties contemplated that with a deeper well the-water would flow into a depth which could be reached by the suction with the pumps as they were then placed, and that the defendant’s commissioners were contracting for a well which could be used with those pumps. The agreement was not to exhaust or make 'a-thorough test of the Cook well, but to make a certain test. Upon the result of that test the liability of the defendant was by the contract made to' depend.

The decision of this case upon the former -appeal is not in conflict with the conclusion here reached. That decision was based purely upon the bonafides of the test made by the defendant. The construction of the contract was not determined. (29 App. Div. 49.)

Our conclusion is, therefore, that the construction, of this contract, whether as a matter of law, or one of mixed law and fact,, was for the court; that under the contract the defendant was not bound to lower the pumps in order to make the test required, and that the trial court erred in submitting this question to the determination of the jury. The judgment and order should, therefore, be reversed.

Adams and McLennan, JJ., concurred; Hardin, P. J., dissented ; Spring, J., not sitting.

Judgment and order reversed and a new trial ordered, with costs to the appellant to abide the event.  