Upon the trial of this action the referee allowed the negotiations of the parties, prior to" the execution of the written contract, and also their subsequent conduct under it, to "be given in evidence on the part of the defendant and under the plaintiff’s objections. . He stated that he did not receive it for the purpose of altering or modifying the written contract, and he has found as a fact that the written contract was the. only one made between the parties. Nevertheless, lie.has found that the plaintiff did not complete the well, and has, therefore, dismissed the complaint on the ground that the contract being an entire one, the plaintiff could not recover anything until he had fully performed it. He has also- refused to find that the well was incomplete on account of improper piping, and hence it is plain that he has based his decision on the fact that the well did not go as deep as the contract required. Thus it appears, that he must have given a meaning to the word “ well ” derived from the evidencé so taken, and the question is presented whether such evidence was ■ properly received for .the purpose of explaining the meaning of that word.
The evidence so received was substantially to the following effect: That defendant, during the negotiations, told the plaintiff that he did not want a common, ordinary well .as he had six or seven on his *301farm ; that he wanted to get water from the bed rock hundreds of' feet, below the surface, and to have the surface water kept outand that plaintiff told him he could drill such a well and keep out the-surface water,, and that he would continue to drill five or six hundred feet if he did not get a flowing well before that. That, subsequently, when plaintiff left the work, after drilling ninety feet-in all, some sixty-seven feet of which were-in the rock, he told defendant he would come back in the spring and complete the well..
In my opinion there was not such an ambiguity in the written contract as warranted the receipt of the foregoing evidence to-explain it.
It may be true that .the word “well” does not in itself convey a. distinct idea of the precise thing which the parties intended should be produced. There are dug ’yells, and driven wells and drilled wells. So there are wells of 'various depths; those intended to. furnish surface water only, and those used to bring up water from a. great depth below the rocks. And if a contract obligates a party to construct for another “ a well,” the question is at once suggested,, what' kind of a' well. There is an uncertainty as to the precise meaning in which the phrase to “ construct a well ” or to “ drill a, well ” is used by the. parties. But it is an uncertainty that arises at-once, upon the reading of the contract. ■ We do not have to wait, until some other fact is brought to our knowledge before the uncertainty is apparent, but the doubt is suggested at once and by the phrase itself. Hence it is an ambiguity which the law terms a. “ patent ambiguity,” and as a general rule such an one may not be cured by proof of what the parties . intended by the use of the doubtful phrase. The reason of that rule is said to be “ that if a. meaning should be assigned by the aid of extrinsic evidence, to that which is apparently destitute of meaning, or if the sainé instrument, should be made to operate in different ways according to the weight of oral evidence, the effect would depend, not upon the instrument, but upon the force of the oral evidence, and thus the latter would be virtually substituted for the former.” (2 Am. & Eng. Ency. of' Law [2d ed.], 289, 290.) The'receipt of this evidence illustrates the-propriety.of this rule. By adopting the evidence of the defendant as. truthful, the referee has construed this written contract to require the plaintiff to drill to a depth sufficient to procure water from the *302bed rock. Had he believed the plaintiff’s version and rejected that of the defendant, he would have construed such writing to impose a very different obligation.
It is to be noticed that this evidence was not received as defining the usual and ordinary meaning of the word “ well.” It was received and allowed to define the word “ well ” as used by the parties to this contract. Defendant testified: “ I told him I didn’t want a common, ordinary well.” And thus, under the guisé of explaining the word “ well,” there has been read into this writing ' an agreement to drill an uncommon and extraordinary well, viz.,' one that will bring up water from 500 to 600 feet below the surface.
■ Although the evidence was not received for the purpose off altering or modifying the written contract, the attempt to' explain a “patent ambiguity” necessarily results in such an alteration, and it seems to me that the casé is before us in substantially the same condition in which it was when reversed upon the former appeal. (80 Hun, 73.)
The record does not show that the plaintiff has' anywhere consented to the receipt of this evidence or waived his objection thereto. He duly objected and excepted when it, was offered, and his subsequent request to the referee was but a request that he put distinctly upon the record his ruling upon the subject. That ruling, in effect, was, that the evidence was not admissible to vary the written contract, but was admissible to explain it, and in this ruling I think he erred.
This reasoning applies to the case and results in a reversal of the judgment, even if we concede that an ambiguity arises in the use of the word “ well” without other provisions specifying what kind of a well is intended. But. I think it clear that the word, in the written contract, must be considered as used in its usual and ordinary sense — in the sense which the defendant meant when he testified he had six or seven “ common, ordinary wells.” And clearly in that sense a well drilled 500 or 600' feet deep and sufficient to bring up water from the bed rock below is not indicated: If one drills a well down to the rock and there gets water, I conclude he has performed his contract to “ drill a well ” in the absence of any further ' provisions defining the character, depth or purpose of the well. Whether the *303plaintiff could recover under this contract for continuing to drill after he had completed the well, is a question not now presented to us.
The written conti’act further provides that the plaintiff “ is to be relieved from all responsibility when he stops drilling,” and it is urged upon us that, under this provision, he has the right to stop drilling whenever he chosé. I am not at all clear what purpose this provision was intended to accomplish, but if it is to indicate that any different well from the ordinary surface water well was to be drilled, I think it should be construed as securing to plaintiff the right to determine how far he should drill in the effort to get a different one. But its meaning is so obscure that I have not considered it in the view which I have taken of this case.
For the errors above stated the judgment must be reversed.
Herrick and Landon, J J., concurred ; Merwin and Putnam, JJ., dissented.