Holliday

Plaintiff and the defendant entered into a written contract whereby the plaintiff agreed to drill a well for water on certain described land of the defendant, and the defendant agreed to pay therefor at a prescribed rate measured by the number of miner’s inches of water produced from the well. A well was drilled to the depth of approximately eight hundred forty feet, from which ninety inches of water was produced. Defendant having refused payment, the plaintiff brought this action, which was tried by jury and resulted in verdict and judgment in favor of plaintiff. Defendant appeals from the judgment.

Among the terms of the contract which describes the obligations assumed by the contractor, we find that the contractor agreed “at his sole cost and expense, to furnish all necessary drilling equipment of whatever nature; all material such as casing, gravel, etc.; all labor, and to drill in a workmanlike manner to a depth to be determined by him, and to perforate, and blow the well with compressed air, and to bring the well in, and leave it absolutely clean and ready for a pump”. The present controversy arose out of certain contentions of the defendant concerning the meaning of the…

I dissent. The pivotal question presented is whether the provision in the contract that was entered into by the parties thereto, that the person who drilled the well would “bring the well in and leave it clean and ready for the pump”, was of such a nature that the introduction of evidence to determine the intention of the parties with reference to the use of such expression would be in contravention of the general rule which forbids the alteration or modification by parol evidence of a written contract. (See. 1856, Code Civ. Proc.; sec. 1625, Civ. Code.)

As a pointed suggestion that the language employed by the parties to the contract was not entirely clear, at an early stage on the trial of the action the remark made by the judge of the trial court with reference thereto is indicative. He said:

But even assuming that the language in question in itself was free from ambiguity, nevertheless if it appear that it was used or understood with a “peculiar signification”, the agreement entered into by the interested parties thereto “must be construed accordingly”. Section 1861 of the Code of Civil Procedure provides as follows: “The terms of a writing are presumed to have been used in…