Plaintiff and the defendant entered into a written contract whereby the plaintiff agreed to drill a well for water on certain described land of the defendant, and the defendant agreed to pay therefor at a prescribed rate measured by the number of miner's inches of water produced from the well. A well was drilled to the depth of approximately eight hundred forty feet, from which ninety inches of water was produced. Defendant having refused payment, the plaintiff brought this action, which was tried by jury and resulted in verdict and judgment in favor of plaintiff. Defendant appeals from the judgment.
[1] Among the terms of the contract which describes the obligations assumed by the contractor, we find that the contractor agreed "at his sole cost and expense, to furnish all necessary drilling equipment of whatever nature; all material such as casing, gravel, etc.; all labor, and to drill in a workmanlike manner to a depth to be determined by him, and to perforate, and blow the well with compressed air, and to bring the well in, and leave it absolutely clean and ready for a pump". The present controversy arose out of certain contentions of the defendant concerning the meaning of the above-quoted paragraph. The position taken by appellant is indicated by the statement of his counsel in *Page 482 their brief that "a well was drilled and about ninety miner's inches of water was produced, but the water was so highly impregnated with sand that it was not available to the appellant for purposes of irrigation or for any purpose at all".
The nature of the defense is shown in the answer, wherein the defendant alleged "that at the time the said agreement referred to in plaintiff's complaint herein was executed, it was thoroughly understood and agreed between the parties thereto that the expression `and leave it absolutely clean and ready for the pump' meant that the plaintiff would leave the well and the water produced therefrom absolutely free of sand and clean and ready for the pump, and at the time said agreement was entered into each of the parties thereto, that is the plaintiff and defendant herein, stated each to the other that the said expression `and leave it absolutely clean and ready for a pump' was intended to mean and did mean that plaintiff would leave said well and the water produced therefrom absolutely clean, free of sand and ready for the pump, and at the time said agreement was executed the following expression contained therein `and leave it absolutely clean and ready for the pump' was by each of the parties thereto interpreted to mean and in fact did mean that the plaintiff would leave the well and water produced therefrom absolutely clean, free of sand and ready for the pump. And plaintiff alleges that the said well has never at any time been clean and/or ready for a pump; alleges that the water produced from said well has never at any time been clean and/or free of sand, but on the contrary said well has never been clean and said water has never been free of sand, but has been heavily impregnated with sand, in fact, so heavily impregnated with sand that it has never been ready for a pump and that it is not practicable to pump water from said well with any kind of pump for irrigation purposes or for any purpose at all".
Appellant's principal assignments of error relate to the rulings of the court whereby the defendant was prevented from introducing testimony of witnesses to prove that in their oral negotiations prior to the making of the written contract the plaintiff represented to the defendant "that he could and would put down a gravel-packed well for the defendant which would produce a large quantity of water, *Page 483 and which would be free and clear of sand, and in which well the water would be entirely clear and usable for domestic use and irrigation purposes". The plaintiff objected to this testimony on the ground, among others, that it was an attempt to vary a written instrument by parol testimony. The objection was sustained and the offered testimony excluded. Appellant insists that he should have been permitted to introduce the evidence which was thus excluded. If the court erred in its ruling as to this matter, the judgment should be reversed. If the court did not err in that ruling, the other assignments of error will not be of sufficient importance to require further consideration.
It is claimed by appellant that under the provisions of sections 1856, 1857, 1858 and 1860 of the Code of Civil Procedure, he was entitled to introduce evidence in accordance with his offer; and particularly, testimony showing what was said in conversations between plaintiff and defendant before the contract was written. Appellant admitted that he was not seeking to establish any mistake in the writing or any fraud in the transaction. He himself relied upon the written agreement, but contended that the phrase "bring the well in and leave it absolutely clean and ready for a pump" was by the parties intended to mean that the plaintiff would leave the well and thewater produced therefrom absolutely clean and ready for the pump.
"The terms of a writing are presumed to have been used in their primary and general acceptation, but evidence is nevertheless admissible that they have a local, technical, or otherwise peculiar signification, and were so used and understood in the particular instance, in which case the agreement must be construed accordingly." (Code Civ. Proc., sec. 1861) [2] If appellant had offered evidence tending to prove that the words used in the contract, as to this particular matter, "had a local, technical or peculiar signification", it then would have been appropriate to introduce evidence showing that the words were so used and understood in the particular instance. But no attempt was made to introduce evidence to establish such special signification. Without evidence that there was in existence a local, technical or other peculiar signification of the kind relied upon, the terms of the writing were incapable of the interpretation sought to be put upon them by appellant, *Page 484 and he had no right to vary their meaning by oral evidence of the conversations between the parties. For the terms of the writing, "used in their primary and general acceptation", that is to say, according to their plain and simple meaning, referred solely to the condition in which the well should be left by the contractor, and did not include the condition or quality of the water to be produced by the well. The evidence without conflict shows that after the drilling had been completed, the mud and other debris therein were removed and the well itself was clean and ready for the pump. The only way left for appellant to avoid the effect of this evidence was to show, if he could do so by competent evidence, that under the terms of the contract plaintiff was obligated to see to it that the water as it came into the well was also clean and fit for use. But the contract itself carried no such obligation, and the evidence to which we have referred, which appellant offered to produce and which the court excluded, was not competent or admissible evidence in relation to the matter at issue. This brings us to the conclusion that the rulings of the court were not erroneous.
For the foregoing reasons, the judgment is affirmed.
York, J., concurred.