
    Patrick H. Bird Respondent, v. Clinton Beckwith and John V. Quackenbush, Appellants.
    
      Ambiguous contract —^ when parol evidence is competent to show the intent.
    
    A contract provided as follows: “ I, P. H. Bird, * * * hereby agree to boat stone for Beckwith & Quackenbush * * * during the seasons of navigation of 1897 and 1898. Said Beckwith & Quackenbush to load and unload all stone freighted, and to pay freight on stone when delivered.
    “I agree to do all necessary shifting of boats, you to put in fa.se bottoms in boats and remove same when this agreement terminates.
    “(Signed) , “P. H. BIRD.
    “W'e accept the foregoing proposal of P. H. Bird.
    ‘ ‘ (Signed) BECKWITH & QUACKENBUSH."
    
      In an action brought by Bird to recover for a breach of this instrument it was Held, that the contract was ambiguous and that parol testimony was admissible to show that the parties to it contemplated that it should remain in force only for that portion of the season of navigation of 1868 during which Beck-with & Quackenbush had stone to boat.
    Such testimony does not operate to contradict, vary or modify the written contract.
    Appeal by the defendants, Clinton Beckwith and another, from :a judgment of the Supreme Court in favor, of the plaintiff, entered in the office of the clerk of the county of Madison on the 18tli day of May, 1899, upon the report of a referee.
    The plaintiff sought to recover in this action under the provisions of a written contract, of which the following is a copy:
    “ I, P. H. Bird, owner and master of the boats William G-. Ronan and Robert Walker, hereby agree to boat stone for Beck-with & Quackenbush from Port Plain to points on the Erie ■ canal between lock 45 at Frankfort, west to the Oneida county line* for the sum of fifty cents per cubic yard, during the seasons of navigation of 1897 and 1898. Said Beckwith & Quackenbush to load and unload all stone freighted, and to pay freight on stone when delivered.
    “ I agree to do all necessary shifting of boats, you to put in false bottoms in boats, and remove same when this agreement terminates.
    (Signed) “ P. H. BIRD.
    “We accept the foregoing proposal of P. II. Bird.
    (Signed) “BECKWITH & QUACKENBUSH.”
    Pursuant to the provisions of said contract, the plaintiff transported stone for the defendants for the balance of the season of navigation of 1897, and until the 28th day of August, 1898, at which time the defendants ceased to employ him.
    The plaintiff claimed that his employment under the contract was for the balance of the season of canal navigation of 1897, subsequent to the making of the contract, and the whole of the season of 1898, and recovered damages by reason of the defendants’ refusal to furnish employment for his boats and men from the 28th day of August to the 1st day of December, 1898, when canal navigation ceased.
    On the trial the defendants, Quackenbush and Beckwith, were sworn and testified to conversations with the plaintiff at the time of, and immediately preceding the making of the contract, with a view of showing the intent of the parties. . !VIr...Quackenbush testified as follows: “ This was in 1897, and he then proposed to contract for 1897, and I said no, not for 1897 alone; we had talked about putting in false bottoms, and I said we could not do the work and put in the false bottoms for 1897 alone; that we would have some stone in 1898; but what the amount would be I couldn’t tell.” Mr. Beckwith said.: “I said our contract expired in April of next year, but there will be some stone. We will get what work we can /up to the water line, and there will be some stone to top out the slope wall and put on the roll. * * * It was then October, pretty late in the season, and I said it would not pay to put in the false bottoms, which we agreed to put in, simply to boat stone for the balance of the season. * * * I said we will j>ut in the false bottoms in those boats and you are to boat stone for us this season and next season so long as we have stone to boat.”
    Other testimony was given by the defendants to the same effect. Such evidence was, however, afterwards stricken out by the referee, as tending to contradict, vary or modify the terms of the written contract.
    The plaintiff recoveredta judgment for $817.04, besides costs, and the defendants have appealed to this court.
    
      J. B. & J. E. Rafter, for the appellants.
    
      H. W. Coley, for the respondent.
   Putnam, J.:

It is impossible to read the written contract, under the provisions of which the plaintiff was allowed to recover in this action, without entertaining doubts as to its meaning. It will be observed that it contains no covenant that the defendants will furnish to the plaintiff any particular quantity of stone; or all- the stone his boats would transport. The plaintiff agreed to boat stone for defendants, but the quantity was not stated. It appeared on the trial from the plaintiff’s .testimony, received without objection, that he knew that the defendants were canal contractors and that the stone was to be used$ on their canal work where required. Did the contract bind the defendants to employ the plaintiff to draw stone they required in the progress of their work on the canal, or stone for which the defendants had no use after their work was completed ? It is insisted that the agreement of the defendants to employ the plaintiff “ during the seasons of navigation of 1897 and 1898 ’’.was a covenant to employ him for the whole season of navigation of the latter year.

In the Century Dictionary the word “ during ” is defined as follows : “ In the time of; in the course of; throughout the continuance of.” If the parties, in using the word “ during ” in the contract, meant that the defendants should employ the plaintiff to draw stone during the continuance of the season of navigation of 1898, the defendants were liable in the action. But they may have meant, in using the word, “ in the time of ” or “ in the course of j” and if. so the defendants were not liable for failing to employ the plaintiff after they had received all the stone required on their canal contract. In that case the contract must be construed to mean that the plaintiff would draw stone required by the defendants in the course of, or in the time of, the season of navigation of 1897 and 1898. The contract, as so construed, would not compel the defendants to furnish employment to the plaintiff after they had received all the stone required in their work.

The written contract was ambiguous. Its construction depended on the sense in which the word “ during ” was used in the instrument. If the parties intended to use the word in one sense the action cannot be maintained, while the word has also one meaning which would compel the defendants to furnish employment to the plaintiff during the whole season of 1898.

The doctrine applicable to receiving oral evidence in such a case is stated by Vann, J., in Thomas v. Scutt (127 N. Y. 133-141), as follows: “Evidence to explain an ambiguity, establish a custom or show the meaning of technical terms and the like, is not regarded as an exception to the general rule, because it does not contradict or vary the written instrument, but simply places the court in the position of the parties when they made the contract and enables it to appreciate the force of the words they used in reducing it to writing. It is received where doubt arises upon the face of the instrument as to its meaning, not to enable the court to hear what the parties said, but to enable it to understand what they wrote, as they understood it at the time. Such evidence is explanatory and must be consistent with the terms of the contract.” '

In Petrie v. Trustees of Hamilton College (158 N. Y. 458) the sanie judge said: “ While the court is to construe ‘the contract, if its construction depends upon the sense in which the words were used in view of the subject to which they relate, it is" necessary by proof of collateral facts and surrounding circumstances to place the •court in the position of the parties when they made the contract, so as to enable it to understand the meaning of the words used in reducing it to writing.” (See, also, 2 Am. & Eng. Ency. of Law [2d ed.], 294; Tilden v. Tilden, 8 App. Div. 99; McKee v. De Witt, 12 id. 617.)

In Streppone v. Lennon (143 N. Y. 626) it appeared that there was a provision in the building contract that the ■ contractor would do a certain amount of brick work. It was held that the covenant to do brick work might mean simply to do the work* or it might be construed as an agreement also to furnish the brick, and that parol evidence of the conversations of the parties at the time of the making of the contract was competent.

So in this case, under the contract, the parties may have intended by using the word “ during ” that the plaintiff should be employed for the whole of the canal navigation of 1898, or merely that the plaintiff should deliver what stone the defendants required “ in the course of ” or in the time of ” the season of canal navigation of 1897 and 1898.

Parol evidence, therefore, I think was proper hot to contradict, vary or modify the written contract, but -to show what the parties intended — the meaning of the words they used —■ what the written contract in fact was.-

I conclude that the referee erred in striking out the testimony of the defendants above referred to, and that for such error the judgment should be reversed, the referee discharged, and a new trial granted, costs to abide the event.

All concurred.

judgment reversed, referee discharged, and a new trial granted, costs to abide the event.  