
    ROBERT M. CHAMBERS v. THE UNITED STATES.
    [No. 14683.
    Decided April 29, 1889.]
    
      On the Proofs.
    
    A custom exists in the plastering trade of long standing known to hoth parties whereby a curved surface is measured and computed as double the quantity of plane surface included therein; and the intersection of two planes properly -finished, termed “ arris-worlc ” is computed separately and by linear measurement. Oue party to a written contract understands that it refers to the custom, the other that it excludes it. It is silent as to arris-work.
    I. Doubtful expressions in a contract should be construed against the party that uses the language.
    II. When a well-settled custom of long standing is known to both parties, a contract is to bo construed with reference to it.
    
      III. But where a contract provides that the price named per square yard of plastering work “ will include all surfaces whether curved or flat, all edges, angles, and corners, whether salient or re-entrant,” the language is too plain to admit of a custom being implied whereby a curved surface is computed as being equal to double the plane surface of the area.
    IY. In the presence of a duly executed written agreement, and in the absence of fraud, or of a condition so unconscionable that no man should he allowed to take advantage of it, a court cau not hold after performance, that the minds of the parties never met; nor allow one party to show by parol that he misunderstood its terms or misconstrued its language.
    V. “Arris-work" being a distinct thing in the usage of the plastering trade, and being susceptible of only linear measurement, will nqf be construed to have been included in a price named for square yards.
    
      The Reporters’ statement of the' case:
    The following are the facts as found by the court:
    I. In March, 1885, General Meigs, supervising engineer and architect of the new Pension Building in Washington, advertised for proposals for plastering to be done therein. The advertisement contained the following specifications, which were subsequently attached to the contract entered into by the parties, being that annexed to the petition :
    “ The United States will furnish the material for the plastering delivered at the store-rooms near the new Pension Building.
    ‘‘All the angles and corners are to be sharp and true to their lines and forms. .No quirks or beads will be used. The plastering is to be brought close up to the window and door frames, and to extend down to the floor lines.
    “ Bidders should state the price per square yard of actual surface covered with plaster, which price will include all surfaces, whether curved or flat, all edges, angles, and corners, whether salient or re-entrant. All spaces not plastered will not be included in measurement. No extras of any kind are to be allowed.”
    II. At the time the contract was entered into a custom existed in the city of Washington, of which both the claimant and General Meigs had actual personal knowledge, for computing the relative values of the different kinds of plastering, to wit :
    “ The rules of measurement in the District of Columbia are found in a book gotten up in the year 1842, and it has been the custom to be governed by it ever since. It has been acknowledged in Washington for the last forty years, and has been adopted by tbe plasterers and bricklayers and all classes of workingmen. By tírese rules all circular work is counted twice in plastering aud all arrises are charged for by the linear foot. Three cents per foot is generally allowed for “ arris ” outside of the surface measurement.
    “The reason for this rule is that a man engaged on plain surface work will accomplish three or four times as many square yards as one engaged on circular and arris work.” •
    III.The claimant plastered under his contract 24,709 square yards, which work was satisfactory to and accepted by the defendants’ officers. Of this 7,749 yards was circular work; and there was also 18,846 linear feet of finished edges formed by the intersection of two planes or walls, known in the trade as “ arris-work,” which work forms in fact and in general usage a distinct item from surface plastering and is not susceptible of computation by the square yard.
    If - the work so clone he computed as plane surface, excluding from the computation door-ways, windows, circular and arris
    work, the value thereof, at the contract price of 15 cents per
    yard, amounted to. $3,706.35
    If the work so done he computed hy the rules constituting the custom in the city of Washington, also excluding door-ways and windows, there should be added to the above—
    For 7,749 square yards of circular work. 1,162. 05
    And for 18,846 linear feet of arris-work. 565. 38
    Amounting in all to. 5,433.78
    IV. The fair and reasonable value of the work performed by the claimant described in the previous finding, at the rates then ruling in the city of Washington, was $7,056.
    V. There-being a dispute between the claimant and the defendants’ officers as to the quantity of plastering done, the claimant employed an official measurer to measure and compute the same, and paid him for his services $108.68. The defendants did not accept the official measurement as fixing the quantity of work performed, and have refused to pay any portion of the cost of procuring it. The measurement so made has been used as evidence in this case, and the person making it has testified as a witness, and the measurement is found by the court to be correct.
    VI. There has been paid to the claimant $3,324.46, and the following account, with the receipt and indorsement appended, was stated at the time of final payment:
    
      
      The United States to Robert M. Chambers, Dr.
    
    June 22,1885. For furnishing labor and putting in place on. walls and ceilings, in office-rooms, stairways, and 2nd-floor toilet-rooms in first and second stories of new Pension Building, 22,162$ square yards of two-coat plastering, at 15 cents
    per square yard... $¡3,324.46
    (This is for all plastering done to date hereof in first and second stories.)
    ■ Prom the above deduct 750 square yards paid for on voucher No.
    2021, June 13,1885, for work not.in office-rooms and not provided for iu any contract... 112.50
    Leaves 21,413$- square yards of plastering to be paid for under terms of contract dated April 14, 1885, at 15 cents per square
    yard.
    Prom which deduct previous payments on account of contract:
    1885.
    April 30. Toucher No. 1898. $1,044.90
    May 15. “ “ 1945. 623.70
    23. “ “ 1970. 540.00
    June 1. “ “ 1992 . 380.70
    “ 6. “ “ 2004. 245.70
    3,211.96
    2.835.00
    376.96
    “ June 23,1885.
    “ I certify that the articles above enumerated have been received or services rendered; that they were necessary for and have been or will be applied to the construction of a fire-proof building for Pension Office, and that the prices paid wére just and reasonable. 0> meig-s,
    “ Supervising Fngineer and Architect,
    
    
      “Brevet Major-General, U. 8. A.
    
    “ Received, at Washington, D. O., June 23, 1885, of Geo. W. Evans, disbursing clerk, Department of the Interior, three hundred and seventy-six ff’g ($376.96) dollars in full of the above account.
    “ (In duplicate.)* “Robert M. Chambees.
    “ Depabtment op the Inteeioe, * .
    “Office Supervising Engineer and Architect,
    “New Pension Building,
    “ Washington, D. O., June 23, 1885.
    “ The within voucher is subject to correction of any error which may be proved.
    “ General Meigs believes and certifies to correctness of the account as stated, but the contractor thinks that the total amount of his work is greater, and will take means to satisfy himself on the subject.
    “ Of course, if it appears on such examination that any error has crept into the United States measurements, justice will require and will grant its correction.
    “ M. C. Meigs,
    “ Supervising Ungineer and Architect,
    
    “ Fire proof Building for Pension Office,”
    
    
      Vil. The claimant has proved by persons conversant with the trade that the language of the specification annexed to the contract, so far as it relates to prices and measurements, is unusual and not of a kind apt to be intelligible to plasterers, and not likely to be understood as excluding the custom prevailing in the city of Washington; and the defendants have proved" that the purpose of General Meigs, when preparing the advertisement and making it a part of the contract, was to exclude the custom from the contract; and the claimant has further proved that at the time he made his bid and entered into the contract he supposed and understood that the rules referred to in finding 11 were to govern in the measurement and computation of the work.
    The court decided as conclusions of law that the claimant was entitled to recover for only 24,709 square yards of plane surface plastering and for 18,846 linear feet of arris-work, as set forth in finding in, and was not entitled to recover for 7,749 square yards of circular-work.
    
      Mr. John S. Blair for the claimant:
    The so-called contract was no agreement, for the reason that the minds of the parties never met. (See Utley v. Donaldson, 94 U. S. B., 29, and cases there cited.)
    Where there is no contract, or one which the courts will not enforce, the measure of recovery is the reasonable value. (Hume v. The United States, 2 O. Ols. B., 328.)
    As in that case, parol testimony is here introduced not to vary or contradict the terms of a valid written instrument, nor to interpret it, but to show that the agreement is invalid. In the Hume Case, as in this, the requisite mutuality of consent was shown to be wanting and the parties were held not to be bound.
    
      Mr. F. P. Dewees (with whom was Mr. Assistant Attorney-General Reward) for the defendants:
    Neither the case of Utley v. Donaldson (94 U. S. B., 29, and cases there cited) nor Hume v. The United States (21 0. Oís. B., 328) has any application to the present suit.
    It is alleged claimant made a bad bargain, and for that reason the contract can not be enforced against him; that he can, if be sees fit, sue on the quantum meruit, because it can not be presumed he intended to make a bad bargain. The position is a new one, and if sustained would doubtless give great satisfaction to the vast-army of contractors who make bad bargains; but any supposed necessity for contracts would be gone.
   Nott, J.,

delivered the opinion of the court:

This is one of that numerous class of cases where the parties have left the intent of a formal and carefully prepared written contract doubtful to each other and to all the world, when the insertion of a single line in ordinary every-day language would have made the meaning clear and unmistakable.

Both parties knew of a.custom of long standing in the city of Washington, according to which, in the plastering trade, a plane surface is measured and computed as a simple surface; a curved surface is measured and computed as equal to double the quantity of plane surface included therein ; and the line of intersection made by two planes, when properly finished— termed in the trade “ arris-work” — is computed by itself and by linear measurement, and is always additional to the square yards of ordinary work. Knowing this, they agreed that the contract price of 15 cents per square yard “ will include all surfaces, whether curved or flat, all edges, angles, and corners, whether salient or re entrant.” If the employer had added to the advertisement the words “ notwithstanding the custom prevailing in the city of Washington,” or if the contractor had added to his agreement “ according to the custom prevailing in the city of Washington,” either party would have known precisely what the other meant.

In disposing of this question the court reaches its conclusion with great reluctance and some doubt. On the one hand, the contract was framed by the party who gets the benefit of its restrictions; and doubtful expressions should be construed against the party who uses the language. (Garrison’s Case, 7 Wall., 688.) There existed when the contract was made a custom of long standing, fortified by being formulated in a printed book and reduced to positive rules, which ignorant men might well regard as obligatory on themselves and those with whom they dealt, whereby such work was always measured and computed after a prescribed formula; and when a custom is known to exist a contract is to be construed with reference to it. (Bullock v. Finley, 28 Federal R., 514.) If the work be measured and computed according to that custom, the contractor will be entitled to 40 per cent, more for his work than he has received. Finally, if the contract were stricken out of existence and the contractor were suing in assumpsit for what his work was reasonably worth, he would recover in quantum meruit 90 per cent, more than has been paid for this work.^ In other words, the contract as construed by the claimant gives him as compensation a price materially less than his work was worth in the market at the time; and the contract as construed by the defendants gives them the contractor’s services at little more than half their actual value.

On the other hand, the language of the contract seems to the court to be too plain to admit of the interpretation which the claimant contends for, an interpretation that would incorporate the custom as an implied provision.

In the presence of a duly executed written agreement, an din the absence of fraud or of a condition so unconscionable that no man would have knowi gly agreed to it and that no man should be allowed to take advantage of it, a court can not hold after performance that the minds of the parties never met, and that no contract existed. The contractor hero made a bad bargain; he sold his services for less than they were worth — for less than he expected to receive for them. But the bargain was not made first and the objectionable clause inserted afterward in the formal written instrument by the other party, as was the case in Harvey & Livesey (13 C. Cls. R., 338; 105 U. S. R., 671; 113 id., 243). On the contrary, the disputed clause was held before the contractor’s oyes from the very first; it was in the advertisement which called out his proposal $ and was the subject-matter concerning which he contracted. To allow a contracting party to perform according to the terms of his written agreement and then to come in by means of parol evidence and set it aside on the ground that he misunderstood its terms or misconstrued its language, would be to destroy the certainty that is regarded as the chief merit of such instruments.

There is, however, a balance of $381.90 remaining due under the contract, being for the difference between 24,709 yards of plastering performed and 22,163 yards paid for; and the court is of tbe opinion that the “ arris-work,” not being specifically named in the specifications and being susceptible of only lineal measurement and a distinct thing in the usage of the trade from square yards of surface plastering, should be recovered for, viz, $565.38.

The judment of the court is that the claimant recover of the defendants the sum of $947.28.  