pronounced the opinion of the Court It is conceded, that the defendants have paid for all the labor and services which would have been required to be done to complete the contract made between them and the plaintiffs, but for the increased labor and expenditures occasioned by the ocicurrence of an unusual freshet during the period in which the *384plaintiffs were engaged in making the excavations and embankments under their contract. For this extra work, compensation is now demanded ; and this presents the question, upon whom shall fall the loss occasioned by this casualty.
The general rule undoubtedly is, that in cases of contracts for the construction of an entire work at a stipulated sum to be paid for the same, if any casualty shall occur, whkh shall increase the labors and expenditures of the contractor, the loss must fall on him who engages to do the work.
But the plaintiffs contend that this is a case of a mere contract for labor generally, to be paid for at a fixed rate of compensation for the work actually done ; and that in such a case the expense of the increased amount of labor arising from some casualty, and without any fault on the part of the laborer, would fall upon the party for whom the labor was performed. We are therefore brought to the inquiry, what is the legal effect of the agreement made by these parties.
A preliminary question however arises, as to the admission of the parol evidence offered by the plaintiffs, and rejected on the trial. The plaintiffs proposed to show, that the defendants had verbally promised the plaintiffs to make a slope wall as they proceeded in making the embankment, and which, if made, they allege would have prevented the loss which has occurred. No precise time is stated when this agreement was made, but it is understood to be offered as a part of this contract, either made at the time of signing it, or in the preliminary negotiations concerning it. But in either point of view, it is objectionable as being offered to control and vary a written contract.
It does not come within the rule allowing evidence to be introduced as to the actual state of things existing at the time of the making of a contract, to aid in its construction.
The case is therefore to be decided solely upon the construction to be given to the written contract. The plaintiffs stipulate to make and construct a certain part of the Agawam canal, the extent of the embankments and excavations being particularly described ; and in consideration thereof they are to receive twenty cents for each and every cubic yard of excavation, and the like sum for each and every cubic yard of embankment. It seems to us, that this must be considered as a *385contract to pay for so many cubic yards of embankment as the same, when finished, would measure, and to pay for as many cubic yards of excavation as would be required to make the canal as stipulated, calculating upon the amount of earth to be removed in the state of things as they were at the date of the contract ; and that as to so much of the embankment as had been washed away by the flood while the plaintiffs were in the execution of the contract, or the earth which was by the same casualty carried into that part of the canal, which was to be deepened, they are not to be computed in making the estimate of embankment and excavation chargeable upon the defendant?
Plaintiffs nonsuit.