(dissenting). Action for money paid by the plaintiffs for the use of the defendant. The plaintiffs, who *555were masons, entered into a written contract with the defendant to erect and finish certain brick houses on lots belonging to the defendant in the city of Hew York. The plaintiffs were to furnish all the materials and do all the labor for a specified price, in gross, viz., the sum of $4,700. The specifications required the construction of five drains to connect as many vaults, on the premises, with the sewer in the street. An ordinance of the city required that a fee of ten dollars for each drain should be paid to the Croton Aqueduct Board for the privilege of tapping the sewer. The plaintiffs hired a licensed plumber to tap the sewer for the five drains. The plumber paid the fees, amounting to fifty dollars, the plaintiffs reimbursed him the amount and brought this action to recover the same from the defendant. On the trial, before a referee, the plaintiffs proved the written contract, the ordinance of the city, and the payment of the fees, and rested. The defendant then offered evidence of a conversation, between one of the plaintiffs and himself, relative to the payment of the fees in question, which occurred before the execution of the contract in proof. The plaintiffs objected to the evidence as incompetent, because it tended to add to or vary the written contract; the objection was overruled and the plaintiffs excepted. The evidence thus admitted was to the effect, that, as the negotiations between the parties were closing, the architect, who was to draw the contract and specifications, being present, one of the plaintiffs said to the defendant, “ How, Mr. Ross, you ought to pay for the tapping of the sewers.” The defendant answered, “Ho, I will not pay for anything.” The architect then said to the plaintiff present, “What do you say, Mr. Thorp? I want this thing fairly understood.” Thorp answered, “Well, I suppose I will have to stand it,” and the architect replied, “ Well I will draw up the contract.” The contract, as drawn and executed, made no reference to the payment of the fees in question.
The referee found the facts as above, and reported in favor of the defendant. Judgment, accordingly, was affirmed at the General Term, and the plaintiffs appeal to this court.
*556It is clear that the evidence of the parol agreement, preliminary to the written contract, was improperly admitted. The rule is elementary, that the written agreement must be taken to be the repository and evidence of the final intention and understanding of the parties. Ho matter what the previous negotiations or agreements may have been, the parties will be held to have finally agreed and decided upon the covenants and conditions expressed in the written agreement. By the contract in this case, the plaintiffs agreed to do certain things for a stipulated price. The specifications, attached, stated in detail what it was they agreed to do. They were to furnish all the materials, and do all the work required, to erect and finish the buildings according to the specifications. The building of the drains and the work of connecting them with the sewer, was embraced in the specifications. The effect of the parol agreement, admitted in evidence, was to charge the plaintiffs with the additional obligation to pay the Croton Aqueduct Board for the privilege of tapping the sewer. This payment was not called for by the terms of the written contract, neither was it within its legal construction. It was no part of the work of erecting and finishing the buildings, nor of constructing the drains, nor of connecting them with the sewer. It was not the payment of a fee for license to do the work. The plaintiffs employed for that purpose a plumber already licensed to do all branches of work in his line. The fees in question, which were required by law to be paid before the connection with the sewer would be permitted to be made, were evidently imposed for the defendant’s privilege of draining his premises into and through the public sewer. The payment of such a charge was wholly without and beyond the scope of the plaintiffs’ undertaking in their written contract, and to require it of them would be to impose upon them an obligation not expressed in nor to be implied from that writing. How then can it be said that the parol agreement, admitted in evidence, did not vary the written agreements? The view urged by the respondent here and taken in the court below is, that this was a distinct and independent agreement, relating to matter not embraced *557in the written contract, and therefore not in conflict therewith. But it is not so. Though it do not contradict the written agreement, viz., by negativing any thing which is there affirmed, it clearly does add to the written agreement, viz., by affirming what is not there affirmed. The question is, what have the plaintiffs undertaken to do in the matter of the erection and finishing of these houses % To put the answer to that question beyond all doubt or cavil, they have entered into a written contract with specifications, and the rule is inflexible, that, except for the purpose of reforming that contract on the ground of fraud or mistake, no court will go behind the contract itself to inquire what may have been the previous negotiations, understandings or even agreements between the parties. The referee, therefore, erred in admitting the evidence objected to by the plaintiffs, and for that reason the judgment should be reversed and a new trial granted.
Hunt, Ch. J., and Grover, Mason, Clerke and Bacon, JJ., concurred with Woodruff, J.
Judgment affirmed with costs.