
    Raymond Concrete Pile Company, Appellant, v. John Thatcher & Son, Respondent.
    Second Department,
    October 24, 1913.
    Contract to drive piles for foundation construed — action to recover balance due.
    Action to recover the balance due under a contract by the plaintiff to drive piles for the foundation of a vault to be built by the defendant. Provisions of the contract construed, and held, that a judgment in favor of the defendant should be reversed and a new trial granted.
    Appeal by the plaintiff, the Raymond Concrete Pile Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 7th day of January, 1913, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the same day denying the plaintiff’s motion for a new trial made upon the minutes.
    
      Martin Conboy, for the appellant.
    
      Hugo Hirsh, for the respondent.
   Thomas, J.:

The defendant, undertaking to build a vault in a cemetery, contracted with the plaintiff to drive piles for the foundation. The contract indicates that it was estimated that 181 piles, each twenty feet in length, would be required, for which a gross payment of $5,460 was stipulated. But it was also considered that there might be required (1) some additional piles; (2) additional lengths of piling; (3) shorter piles should they be “ found sufficient; ” and it was stipulated that additional piles or additional lengths of piling should be paid for at $1.30 per lineal foot, and that for piles shorter than twenty feet deduction from that length should be made at the rate of sixty cents per lineal foot. But how would it be determined whether the 181 piles each of twenty feet length, or longer or shorter piling would be required \ Assume that the. several lengths were on the ground, how would the plaintiff know what lengths to drive ? Was it contemplated that the plaintiff should first try a pile twenty feet in length and, if the required resistance was not obtained when its upper end had been driven, that the plaintiff should keep driving such pile still below the surface? It seems to one unskilled in that trade that in such case it would he necessary to place another pile on the upper end of the one inserted, and drive the two thus connected until the required resistance was reached. Alternatively a longer pile or, as the contract says, “additional lengths of piling ” could be used, if earlier driving or discretion showed the necessity for it. But if it was understood that upon a twenty-foot pile below the surface of the ground another should be driven, the one pursuing the other, why was provision made for different lengths ? The operation was this: A cone-shaped core, pointed at one end, was driven by blows from a steam hammer delivered at its upper end. This core carried with it a sheet metal encircling shell. When the driving had been completed the collapsible core was withdrawn and the concrete poured into the shell and a concrete pile thus formed. Now it happened that of the piles driven a number, in length thirty, thirty-five or forty feet, were driven somewhat below the surface. But the defendant says that they were not driven far enough to obtain the required resistance, and it predicates that contention upon the ground that at the end of the driving less than ten blows of the hammer were required to secure one inch of penetration. And it refers for support to the contract, which provides: “The pile core shall in each case be driven until not more than ten blows of a No. 2 vulcan steam hammer are required to secure 1 inch penetration. Should boulders or other obstructions be encountered which prevent securing further penetration, driving shall cease and the pile be considered a completed pile, unless such obstructions are removed by you to permit of further driving. Length of pile to be paid for shall he the length of shell actually driven in the ground, unless the shell is filled to a point above the surface of the ground, in which case the length of pile to he paid for shall be the length from the point of the" shell to the top of the concrete in said shell. ” The defendant’s argument is that less than ten blows of the hammer in fact were required to secure one inch penetration, and that, although the pile has been driven beneath the surface, pile should have been driven on pile until ten blows or less did not secure one inch penetration. According to that view the pile wholly driven ceases to be the limit, but indefinite pillas must be superimposed one upon another until the hammer in ten blows has exhausted its power to drive the vertical series another inch. The plaintiff insists that the pile, whatever its length, is the unit, and that, when it has been driven and the necessary resistance not met, another of greater length in the defendant’s discretion may be driven, but not upon top of it, and that, if the pile is wholly inserted, it becomes a completed pile if, before its full length has been driven, ten blows of the hammer will not drive it another inch, or “boulders or other obstructions be encountered which prevent securing further penetration.” But the defendant urges that, although the pile be fully in the ground, it shall be driven down as long as the ten blows of the hammer can make it penetrate a further inch. The record furnishes no extrinsic aid to interpretation. The plaintiff would have shown “ what steps were taken * * * to comply with the agreement,” but the question, maybe because its' relevancy did not appear, was excluded as immaterial. If the object was to show how the work was carried on, the evidence might have aided an understanding of the contract. For instance, it might have shown whether with appliances usual in the trade one pile could be superadded to another to secure penetration, or whether, when a pile was fully driven and finally ten blows of the hammer were not required to secure one inch penetration, the practice was to drive in proximity to it longer piles. The letter from the defendant seems to favor the latter view, for it says: “It was understood that you drive on Thursday with your 40 ft. core, it being assumed from the borings that the required resistance can be secured with this core, if not, why then other steps will have to be taken.” It is inferable from the letter that the length of the pile required was determinable from knowledge already at hand and not from inserting a pile, and, if it did not meet requisite resistance, piecing it out with other piles, end on end, until sufficient lengths were in the one line. In the absence of knowledge of practical operation advising otherwise, I think that such process of extension is not the intention of the contract. Therefore, the judgment and order should be reversed and a new trial granted, costs to abide the event.

Jenks, P. J., Burr, Stapleton and Putnam, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the event.  