[ upon Re-hearing.
Thayer, C. J.,delivered the opinion of the court.
This case was argued, submitted and decided at the last term of this court sitting at the town of Pendleton. Some doubt prevailed, however, in the minds of some of the members of the court as to the correctness of the conclusions arrived at, consequently it was concluded to grant a re-hearing. The facts of the case are pretty fully set out in the opinion rendered at the former hearing; but as it will enable me more clearly to express my views in regard to it, I shall briefly advert to them.
*27The appellants, with certain other persons as their sureties, on the seventeenth day of June, 1887, executed to the respondent a bond or obligation for the payment to the respondent of the sum of $4,000. Said bond contained the following condition and recital:
“The condition of the above obligation is such, that, whereas, the above bounden C. P. Church and E. Saunders are about to enter into a contract with the town of Pendleton, supplementary to the contract now existing between said C. P. Church and E. Saunders, on one part, and the said town of Pendleton on the other, providing for the construction of the system of water-works in said town, which contract bears, or is to bear, date the twenty-first day of June, A.D. 1887, and which contract provides for the doing of certain work on the reservoir belonging to said water system, in case the same shall be necessary to make said reservoir water-tight. Now, therefore, if said C. P. Church and E. Saunders shall strictly conform to and perform all their covenants contained in said contract, etc., then this obligation to be and become void,” etc.
The agreement referred to in .the bond contained the following stipulations:
“That the parties of the first part, for and in consideration of the acceptance by the town of Pendleton of the water-works system constructed for said town, by the parties of the first part, in its present condition, and the payment by the town of Pendleton to said parties of the sum of water bonds by the town of Pendleton, in the denomination of one thousand dollars each, and numbered 22, 23, 24, 25, 26, 27, 28, and 29, and of the sum of one hundred and ninety-two and 48-100 dollars, by warrant drawn on the town treasurer, that being the balance of price agreed upon by the first and second parties as due to said first parties from said second parties upon the full and complete completion of said water-works system, the parties of the first part agree to and with said second parties that within ninety days from the date of the signing of this contract the reservoir of the water-works system of *28the town of Pendleton shall contain at least five hundred thousand gallons of water, or so much as can be put into the reservoir by pumping; and that said reservoir, when containing said 500,000 gallons of water or as near thereto as possible, shall not lose from evaporation and filtration more than one and one-half inches of water, vertical measure, during each twenty-four hours, and that if said reservoir, when containing said amount of water, at the expiration of said period of ninety days shall lose more than one and one-half inches of water, by filtration and evaporation, during each twenty-four hours, then that the said first parties shall, at their own cost and expense, within twenty days thereafter, make said reservoir watertight by walling up the north, east and west walls of the same with hard-burned brick, laid in cement mortar, and shall plaster the same with cement and black, sharp sand mixed in the customary proportions for cementing cisterns on the inside of the walls of said reservoir to a depth of at least § of an inch.
“And it is further understood and agreed by and between the parties to this agreement that during the time mentioned in this agreement for the completion of said reservoir, that the town of Pendleton will pump water into said reservoir to the full capacity of its pumps (except what water shall be needed for consumption in said town) whenever the first parties may desire to make a test of said reservoir, not exceeding once each week, and that the said first parties shall have the right during said time to bleed the reservoir as often as they may deem it necessary for the repairing of the same.”
These provisions of the said bond and contract indicate very clearly the status of the affair between the parties at the time of their execution.
The appellants had contracted with the respondent to construct and put in for the latter a system of water-works, including a reservoir, which reservoir was to be built according to certain specifications, was to have the capacity of holding 500,000 gallons of water and be water*29tight. They had ostensibly, I suppose, completed the works and were claiming that they were entitled to their pay. The officers of the city having the charge of the business were probably suspicious that the reservoir might not be water-tight, hence they withheld payment until the bond and supplemental agreement were executed. They thereby evidently sought to secure to the city a full compliance upon the part of the appellants with the terms of the original contract in the respect mentioned; and the rights of the parties in the premises depend upon the construction of the supplemental contract, which must be construed in view of the surrounding facts and circumstances.
The parties understood, no doubt, that it might be necessary to wall up the said three sides of the reservoir and plaster the walls, as provided in the supplemental contract, in order to render it water-tight, and the time and opportunities agreed to be given to the appellants to test and examine it were for the purpose of enabling them to ascertain with certainty whether or not it was necessary to do that. The important consideration in the matter was to secure a water-tight reservoir; the appellants had agreed in the original contract to construct such an one, and they were not relieved from the obligation by the supplemental contract. The object and purpose of walling up the sides and doing the plastering as therein provided were to secure that result, which the parties evidently supposed would accomplish it beyond a peradventure. The language of the instrument is that the said appellants shall “make said reservoir water-tight by walling up,” etc. The respondent agreed, it is true, that it would pump water into the reservoir to the full capacity of its pumps (“except what water shall be needed for consumption in said town”) whenever the first parties may desire to make a test of said reservoir, not exceeding once each week, and that said first parties should have the right during said time “tobleed the reservoir” as often as they might deem it necessary. This imposed an obligation upon the *30respondent, but I doubt very much whether it was such an one that neglect upon the part of the respondent to observe it would constitute a defense in favor of the appellants in an action against them for a breach of the original contract to construct a water-tight reservoir. It certainly would not unless such neglect could be construed into a positive acceptance by the respondent of the reservoir in the condition it was in at the time of the execution of the supplemental contract, although it would have been a good answer to a charge by the respondent of a failure on the part of the appellants to build the wall and do the plastering in the absence of clear proof that the reservoir could in no other manner be made water-tight. Under either of these contracts the appellants were obligated to construct a reservoir which would hold water. The second contract differs from the first one only in its prescribing the mode in which the reservoir was to be made watertight. The importance of its being so made is obvious. A leaky reservoir constructed for the purpose of supplying a town with water would be worthless and render the water system, which it was intended to maintain, a total failure. The parties to the said contracts understood this perfectly, and had the fact in view at the time of their execution.
The appellants’ counsel insist that if a contract is not ambiguous or uncertain it is the duty of the court to take the contract as it finds it, and enforce the stipulations which the parties themselves have made, as they are only bound to the extent of those stipulations. If the counsel mean by this that the courts in their construction of contracts are bound by the literal words contained therein, taken according to their strict signification, they are very wide of the mark. If the intention of the parties to the contract is manifest, of course ‘ ‘ the court should enforce the stipulation which they themselves have made.” A knowledge of such intention cannot always, however, be gained from the abstract meaning of the language which the parties employ in their contracts, but must be ascer*31tained many times from the idea which, was sought to be conveyed by the use of it. Nor should the interpretation of the language be confined to its specific meaning, as general words, in a contract or other instrument, often imply important obligations that are binding upon the parties.
The case in hand furnishes a good illustration of the principle suggested. The appellants in the original contract with the respondent undertook to build and construct a reservoir which should be water-tight. The terms of the undertaking were general, yet an implied obligation was thereby created to the effect that the appellants would do whatever might be necessary to make such water-tight reservoir. If, therefore, it were necessary, in order to prevent the reservoir from leaking, to. wall up the four sides thereof, and plaster the entire inside “with cement and black sharp sand,” they were just as much obligated to do it under the general terms of the contract as they would have been had it been definitely specified therein. And I think the language of the second contract, read by the light of surrounding circumstances, was sufficiently broad to require the appellants, in case it were necessary to render the reservoir water-tight, to construct permanent and durable walls on the said three sides of the reser-. voir in such a manner as to resist the force of the elements common to the locality and climate where they are situated, and to which they are liable to be subjected. I do'not agree with the view maintained by the learned counsel for appellants, that the construction of the wails without regard to their permanency or durability, although it might answer the letter of the contract, would be sufficient to absolve the appellants from their obligations in the premises. The performance of the work specified in the contract was to effectuate an object. It was intended to secure to the town of Pendleton a system of waterworks that would endure as long as improvements of that character usually continue. It was intended to have stability, and its establishment was contracted for *32with a view to that result. No performance of the work, therefore, not done in accordance with the spirit of the contract should be regarded as a compliance with its terms. Hence, the said walls, if built at all, were required to be constructed so as to be protected from frosts, as far as skill would enable it to be done, and have such a ‘ ‘backing” as would support them and prevent water during rainy seasons from getting behind them. And the obligation of the appellants to construct walls of that character and solidity is fairly inferable from the terms and conditions of the said contract.
The testimony, therefore, offered by the respondent, to show “what would have been a proper wall to have used in the reservoir to have held water, to stand a reasonable length of time, taking into consideration the weather and the frosts which were liable to occur; the wall to be constructed of the material and in the manner provided in the supplemental contract,” and as to what effect frost would have upon the. walls, was competent.
Nor do I agree with the view indicated by said counsel, that the respondent was required to comply strictly with its agreement to pump water into the reservoir as provided in said contract, in order to entitle it to recover in the action. I think that a substantial compliance by the respondent with the agreement we?s sufficient, if the appellants wholly failed to perform the contract on their part. The agreement was made to enable the appellants to test the reservoir in order to ascertain if it were “water-tight,” and to give them an opportunity to repair any leakages which might be found in it. If, therefore, the respondent so far complied with its said agreement as to allow the appellants to accomplish that purpose, they could have no just grounds for complaint. It was immaterial whether the reservoir was filled with water one time or a dozen times in order to discover if it leaked or not. Whenever the water was pumped into it such fact could be readily ascertained. The appellants had the right under the second contract to draw the water off, — “to bleed the reservoir as *33often as they may deem it necessary for the repairing1 of the same,” — and any wilful neglect on the part of the respondent to fill it so that tests could be made for the purpose of ascertaining whether or not it needed repairing would have been a good defense to a recovery upon said contract. The appellants had the right to ascertain by a practical test, if they were ignorant of the fact, whether or not it was necessary to repair the reservoir in order to make it water-tight; but if, as the court charged the jury, they were afforded reasonable opportunities for ascertaining the fact, or if they had knowledge without making such test, that it would not hold water, they should not then be absolved from their undertaking.
The issues in this case were mainly issues of fact. The appellants maintained that it did not require the three walls of the reservoir to be walled up and plastered as specified in the supplemental contract in order to render it water-tight; they claim that they established that fact by the tests made, and also claim that the respondent had failed to give them the opportunity to make the tests and do the repairing of the reservoir, as it agreed to do in and by said contract. These were the questions to be determined in the case, and they were very proper ones to be submitted to a jury. The bill of exceptions shows that cogent proof was introduced on the part of the respondent tending to show that the reservoir was not water-tight and could not be made so without bestowing thereon the additional work, labor and expense referred to, also that the appellants had been given, in accordance with said contract, reasonable opportunity to make the test and do the necessary repairing, and that they had neglected to avail themselves of it. The jury found a verdict for the respondent, and unless they were misled by the rulings of the court to the prejudice of the appellants, the judgment appealed from should not be disturbed.
The appellants’ counsel complain of many of the rulings of the court at the trial; of certain of the instructions given to the jury and of the refusal of the court to give *34those which they requested. I have examined these various rulings and conclude that there was no error committed in making them which would authorize a reversal of the judgment.
I entertain some doubt in regard to the correctness of the following instruction given by the court to the jury: “If you find that the supply-pipe of the reservoir did allow water to escape through its gates, and that such escape was due to the failure of the gates to shut by reason of gravel getting into the pipe, and if you further find that such gravel got into the pipe from the reservoir after the twenty-first day of June, 1887, and before the expiration of the ninety days, by reason of its imperfect construction and in its ordinary use, I instruct that such loss was within the scope of the undertaking of the contractors and they are to be held responsible therefor.” “That filtration in the sense used in the instructions meant leakage from the reservoir from any cause owing to its defective construction and its incapacity by reason thereof to hold water. ” The escape of water through the supply-pipe of the reservoir, whatever may have been the cause, could not mean “filtration” as defined by the dictionary.
But the parties to the said contract certainly did not intend to use the word in the sense in which it is defined; they could not have meant by it the act or process of filtering. They undoubtedly intended it in the broadest sense which could be implied therefrom, viz., “passing through.” They must have meant the escape of the water contrary to the design of the system, which could be obviated by the “walling up of the walls of the reservoir” and doing the plastering as specified, as no other view would be consistent with the obvious intention of the parties. The system of water-works put in by the contractors under the original contract with the city could only be operated by pumping water from a well near the river and forcing it through a receiving pipe, where it was held by means of gates in the pipe in order that it might be drawn off through the mains which supplied the town. The con*35tract provided that the reservoir should be water-tight, hence the parties certainly intended that it should be constructed so as to enable the gates to be closed, otherwise it could not hold water. The supplemental contract was entered into merely ior the purpose of carrying out the terms of the original one, consequently it was the duty of the appellants, if the reservoir had been so constructed as to prevent the gates from being used for the purpose for which they were designed, to repair it in that particular. They stipulated in effect that at the end of ninety days the reservoir should be virtually water-tight, if not they would make it so by the mode agreed upon.
The theory of the respondent’s counsel at the trial of the case in the circuit court was that the action of the water upon the walls of the reservoir, owing to its imperfect construction, loosened and set in motion particles of gravel which found their way into the supply-pipe and prevented its gates from closing, thereby causing a waste of water through the same. In view of the testimony on the part,of the respondent in support of this theory the said instruction was based, and I am of the opinion, after a due consideration of the two contracts, the nature of the subject matter thereof and circumstances connected therewith, that it was properly given.
The judgment appealed from will therefore be affirmed.