It was stipulated by the respective counsel that no evidence was received by the referee for the purpose of varying or adding to the written contract. No point is made by the appellant as to any error in receiving any such evidence. Both parties evidently intended to follow the decision on the former appeal, and have assumed that it was followed. So I think there is no ruling as to the evidence in that respect that we should consider.
The referee found upon sufficient evidence that, when the plaintiff stopped work in November, 1881, neither party considered the well completed, and the plaintiff did not claim it was completed, but told the defendant that he would return in the spring and complete the job.
The referee found .that the plaintiff had not completed the well, and that he could not recover for what he had done, and that the defendant could not recover for the labor, materials and board he had furnished.
Before the plaintiff stopped some water was reached, but the evidence was conflicting as to whether the supply was sufficient to make it a well within the contemplation of the parties. There is no finding that it was such a well, and, therefore, the plaintiff had no *304right to recover on the theory that he had completed the well with an adequate supply of water.
■ The conduct of the parties after a contract is made is admissible for the purpose of showing a practical construction (Tilden v. Tilden, 8 App. Div. 99); and in this case should be deemed to be controlling in favor of the proposition that the plaintiff did not show a right to recover, unless it be true, as claimed by the plaintiff, that he had an option as to how long he would keep on and could stop at any time and recover the price. That plaintiff had such an option is argued from the expression in the contract, “ and is to be relieved from all responsibility when he stops drilling.”
No intention to give plaintiff such an option is, I think, manifest from the contract. Why was a pipe ¡provided for, if the existence of a supply of water was not contemplated ? If a flowing well,- the price was to be less. Why this provision, if plaintiff -could, at his pleasure, stop ? The reasonable construction of the contract, in the absence of proof of subsequent conduct, would,-! think, be that the plaintiff could stop when he chose, and not be responsible to the defendant for damages or for labor, materials or board which the defendant, under the contract, was obliged to furnish, but could not stop and recover the price unless a well, supplying a reasonable . amount of water, was furnished for the use of defendant. This construction is fortified very strongly by the subsequent conduct of both parties. The plaintiff, in the evidence given on his part, claimed that when he stopped he. tested the water and found an adequate supply, and this was given as a reason for stopping. The referee was, I -think, justified in finding that the plaintiff could not recover. ■
Putnam, J., concurred.
Judgment reversed, referee discharged, and a new trial granted, costs to abide the event.