Opinion by
Mr. Justice Mitchell,The assignments of error are forty-six in number and too plainly the result of a policy of excepting to everything, to justify a review and consideration in detail.
Plaintiff contracted with the borough to build a system of sewers. The contract was in writing, and there was no allegation of fraud, accident or mistake, yet notwithstanding this, the court permitted the plaintiff and the borough engineer to testify to their understanding that certain work was not to be done, though expressly included in the writing, and then submitted the construction of the contract to the jury. It appears that the sewers being contemplated in November, 1895, a bid was made by plaintiff, based to some extent upon conversations with the borough engineer. Considerations of expense, however, delayed the project until May, 1896, when the borough authorities having determined to proceed, inquired of plaintiff if he would still undertake the work for the price bid, and on his replying affirmatively, an ordinance *96was passed and the contract drawn and executed. Under these circumstances there was no mistake in any legal sense Avhich rendered admissible the oral testimony as to the sewer on the Schuster right of way being excluded, or the rock excavation in excess of $4,000 being paid for as an extra. Moreover, even had the evidence been admissible it fell short of the 'standard required to vary the plain terms of the writing.
During the progress of the work payments on account were authorized by the borough council on certificates of the engineer as to the work done, including the rock excavation. This action was claimed by plaintiff to be a construction of the contract by both parties which was binding without regard to the terms of the writing. This Anew was practically adopted by the learned trial judge who instructed the jury that “ these two persons can put any construction on that they please; they can put a construction upon that contract entirely different from what a grammarian would put upon it, and if they put that construction upon it, that is the construction the law puts upon it. . . . They read the contract with that little piece of paper called an approximate estimate of the cost with the amount per thousand feet; if there should be more than 4,000 feet of rock it should be paid for at an extea price; if there was less than 4,000 feet of rock that it should be at the usual price of excavating dirt. Now, the contract does not say so, but the fact is that is the construction the parties put upon it.” This was much too broadly stated and erroneous. There was no sufficient evidence that the council in authorizing the payments on account as the work proceeded intended that their action should be treated as an alteration of the contract or even were aware that any such claim would be made.
Judgment reversed and venire de novo awarded.