
    Sooysmith & Co., Respondent, v. Clarence H. Venner, Appellant.
    
      Contract — construction of a driven well — duty to keep quicksand out of the pipe.
    
    A contract, reciting that a water company wished to build a well, stated that there was a well upon the premises of the water works company, in which an iron tube, forty-two inches in diameter, had been sunk to a depth of about fifty feet below the bottom of the well; that the bottom of this tube was in quicksand; that it was desired that the tube be extended by means of a thirty-eight-inch tube by the pneumatic system; that it was believed that there existed, at a distance of from one to two feet below the bottom of the forty-two-inch tube, a stratum of hard pan of from one to two feet in thickness, and below that a water-bearing stratum. By the contract the contractor agreed to sink a thirty-eight-inch tube into the water-bearing stratum, provided that the depth of the extension was not to exceed seven feet below the bottom of the forty-two-inch tube, and “by means of Portland cement, or other suitable material, bar out quicksand between the bottom of the present tube and the stratum of hard pan.”
    The contractor joined together the forty-two and the thirty-eight-inch tubes . in a manner which prevented any quicksand entering at their junction, but quicksand did enter the tube from the lower end of the thirty-eight-inch tube in the water stratum.
    The water company claimed that the quicksand descended from above the hard pan stratum on the outside of the tube, and that it was the duty of the contractor, under the contract, to prevent the quicksand from going down through the space between the tube and the hard pan stratum and entering the pipe through the water stratum,
    
      Held, that under the terms of the contract it was the duty of the contractor to bar out the quicksand from the tube by securely joining the two tubes together at their junction with each other, but that he was not required to bar out the quicksand from passing down from above the hard pan stratum, and between it and the tube, into the water stratum below, and thence into the mouth of the thirty-eight-inch tube.
    Appeal by the defendant, Clarence H. Tenner, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 21st day of November, 1894, upon the report of a referee appointed to hear, try and determine the action.
    The action was brought upon a written contract between the parties, to recover the amount agreed to be paid by the defendant for the performance by the plaintiff of the work provided for by the contract. The defense was that the work had not been completed by the plaintiff in accordance with the terms of the contract.
    The contract was made June 15,1888, and recited that the defendant was desirous of building a well to enable the Adrian, Michigan, Water Works Company to. supply the city of Adrian with water; that there was a well on the premises of the water works company, in which there was sunk a boiler-iron tube forty-two inches in diameter, to a depth of about fifty feet below the bottom of the well; that the defendant desired to procure an extension of that tube to be sunk down to and into the water-bearing stratum, which was believed to exist at a depth of within six or seven feet below the bottom of the present tube; that it was intended to make such extension by means of a thirty-eight-inch tube by the pneumatic system; and that the bottom of the forty-two-inch tube was in quicksand, and that it was believed that at a distance of from one to two feet below the bottom of the forty-two-inch tube there existed a stratum of hard pan from one to two feet in thickness, and that below that was the. water-bearing stratum ; and it was agreed that the plaintiff would provide the necessary thirty-eight-inch tube of three-eighths-inch thickness iron, and all the appliances and machinery for sinking the same, and would sink the thirty-eight-inch tube to such proper depth into the water-bearing stratum as in the judgment of the plaintiff would best accomplish the result desired, provided that such depth should not exceed seven feet below the bottom of the present tube; and that the plaintiff would “ by means of Portland cement, or other suitable material, bar out quiclcsand between thebottom of the present tube a/ndihe said stratum of hard pan. * * * All work to be done in a first-class and substantial manner.” It was further agreed that 'upon the completion of the work the defendant wotild pay the plaintiff the sum of $5,000 in full payment for the work and materials.
    Under this contract the plaintiff furnished the materials and did the work, but the defendant refused to pay the $5,000 on the ground that the work was not done and completed as required by the contract. Quicksand entered the tube and filled it up to a considerable depth, and it was claimed this resulted from a failure by the plaintiff to complete the work as provided by the contract, or from the improper or negligent manner in which it was done. The plaintiff so joinedv together the ends of the forty-two and the thirty-eight-inch tubes as to prevent any quicksand entering at their junction, and the quicksand concededly entered the tube¡ from the lower end of the thirtyeightdnch tube in the water stratum, but the defendant claims that the quicksand descended from above the hard pan stratum, on the outside of the tube, and that it was the duty of the plaintiff under the terms of the contract to prevent such quicksand from going down through the space between the tube and the hard pan stratum, and. entering the pipe from below, through the water stratum. It seems also to be claimed that the filling of the tube with quicksand.from below, even, resulted from the improper performance by the plaintiff of the work and the removal of the appliances from the.tube and well.
    . The referee held that the proper construction of the contract was-that the plaintiff was only obliged to bar out. the quicksand from the tube by securely joining the two tubes together at their junction with each other, and was not required to bar the quicksand from passing down from above the hard pan stratum and between it and the tube into the water stratum, and entering the tube at the lower end of the thirty-eight-inch pipe,, and that there had been no negligence in the performance of the work, and thereupon ordered the judgment in favor of the plaintiff, from which this appeal is taken.
    
      
      Melville Egleston, for the appellant.
    
      Frederic B. Jennings, for the respondent.
   Williams, J.:

There seems to be no dispute but that the quicksand which filled the tiibe entered through the bottom of the thirty-eight -inch tube in the water stratum. There is dispute as to where the quicksand came from, whether it was in the water stratum before the thirty-eight-inch tube was sunk, or whether it went down from above the hard pan stratum during the time the work was being done, or after it was completed, and whether if it went down from above the hard pan stratum, it went down through an opening around and next to the outside of the tube or through other openings originally existing, or which had been made by the defendant while sinking the forty-two-inch tube, or while making borings to ascertain the condition of things below the bottom of the forty-two-inch tube. It cannot reasonably be claimed that the duty of the plaintiff, to prevent the quicksand from going down from above the hard pan stratum, extended beyond the closing up of any opening around and next to the thirty-eight-inch tube, so as to prevent sand going down there. Considering thé manner in which the thirty-eight-inch tube was sunk and the work was done, it is quite doubtful whether any opening was left about the tube through which the quicksand could have found its way into the water stratum below, and whether the presence of the quicksand in the tube should not be accounted for in one of the other ways suggested. But "whether this be true or not, there seems to have been no'way, considering the manner in" which the work was done, in which any opening outside the thirty-eight-inch tube, and between it and the hard pan stratum, could, by the use of Portland cement or other suitable materials, have been closed up. The only place at which such materials could have been applied was between the thirty-eight-inch and forty-two-inch tubes by way of making the joints between the two different sized tubes firm and solid, so as to prevent quicksand entering the tubes at that point.

The connection with the hard pan was necessarily made by sinking the thirty-eight-inch tube through it, and there was no way in which material could be applied outside the thirty-eight-inch tube so as to strengthen such connection between the tube and the hard pan next to it. The contract should be construed in view of these considerations. It could not well be said that the parties intended that the plaintiff should do any act in carrying out the contract which was impossible, in the ordinary way in which such work was to be done. The construction of the contract claimed by the plaintiff seems to have been concurred in by the defendant.

Underwood, writing for the . defendant the letter of July 25, 1888, said: On taking out the sand, the joint between the 42 and the 38-inch pipe, which was a part of your contract to make, was found to be gone, and this accounted for the presence of the sand in the tube. I want nothing but what is fair, but I want to know that the tube is tight, that the joint is well made, so that the sand won’t come in, and there is no way of ascertaining that fact without making a test of the tube with the air taken off. * * * The very object of the tight joint was to keep out the quicksand just above the hard pan, as you will see by referring to the contract.”

In view of the suggestions here made, and of the reasons stated by the learned referee in his opinion, we regard the construction given by the referee to the clause of the contract in question as the proper one, and we see no reason to doubt the correctness of the decision made in the case. We concur in the conclusion arrived at by the referee that the proofs failed to establish any negligence on the part of the plaintiff in the performance of the work, rendering it useless and of no value.

The judgment appealed from should be affirmed, with costs.

Van Brunt, P. J., Patterson, O’Brien and Ingraham, JJ., concurred.

Judgment affirmed, with costs,  