STANGE V. WILSON. Contract: Charles W. Stange v. John B. Wilson. Parol evidence: Reasonable time. Where a contract, for the performance of work in furnishing articles to be manufactured for a building, contained no time of performance, evidence that the parties agreed cotemporaneously, by parol, that they should be furnished at a certain time, is not admissible, as it would be varying the terms of the written contract. Where no time is fixed by a contract for performance, the law implies that it is to be performed within a reasonable time, which must depend upon all the facts and circumstances, and not upon mere opinion or expectation. Error to Wayne Circuit. Heard October 9th. Decided October 14th. This was an action of assumpsit, brought to recover the value of certain iron work made under a contract. The declaration was upon the common counts. In the course of the plaintiff's evidence, it appeared that said work was done under a special contract in writing, signed by both parties, and which was introduced. in the following words: It was "This agreement, made this 18th day of September, 1866, between J. B. Wilson, founder and machinist, of the City of Detroit, County of Wayne, State of Michigan, of the first part, and Charles Stange, of the same place, of the second part, witnesseth, 1. The party of the first part, for himself, his heirs, executors and administrators, agrees to make, for the party of the second part, all the iron work, consisting of wrought iron and cast iron, according to plans furnished by G. W. Lloyd, architect, for Detroit and Milwaukee Railway Depot, for and in consideration of the sum of $5,000. 2. The party of the second part, for himself, his heirs, executors, administrators and assigns, agrees to pay to the party of the first part, "for the above mentioned articles," the sum of $5,000, in the manner following, to wit: In witness whereof the said parties have hereunto set their hands and seals, the day and year first above written." The facts are stated in the opinion. STANGE V. WILSON. Levi Bishop, for plaintiff in error. 1. The contract was evidently left incomplete by the parties. They begin to express the manner in which the payments for the work shall be made, and then fail to do so. These words can not be rejected, for in construing the contract the whole of it must be considered. Chitty on Cont. 20; 2 Pars. on Cont. 501. This defect of the contract ought to have been supplied by averment and proof. If the mode of payment as understood and agreed had been set out, it might have appeared that the payments were to be made in articles other than money, or that a credit was given which had not expired when the suit was brought, and therefore that the suit was premature. It is for the plaintiff to make out his case on the record and by proofs. It is quite likely that the plaintiff found himself embarrassed by the first proposition laid down by Mr. Greenleaf in 2 Greenlf. Ev. § 104. It was competent thus to remedy a defect, as an agreement may be partly in writing and partly by parol.-2 Pars. on Cont. 492, note b; 16 Penn. 43; 5 Whart. 398; 3 M. and W. 402; 2 Dallas, 180. This involved the necessity of a special count in the declaration, setting the facts out fully. It seems that the plaintiff tried to avoid the production of his written instrument, and it only came out incidentally in the course of the trial. When it thus appears in the case, it shows that the plaintiff is not entitled to a judgment on the record as it stands. There appears to have been a blank left in the contract, which may and even must be supplied by parol, before the contract can be available.- Chitty on Cont. 25; 1 Phillips on Ev. 540; see also note 950 to same in vol. 3; 13 Mass. 158; 2 Dallas, 180. From the words used in the agreement there must have been a mode of payment intended, other than, immediately, STANGE v. WILSON. in money, when the work was done. That intent was for the jury to determine when the whole agreement and understanding, as shown by both verbal and written testimony, should be presented to them.-3 M. and W. 403. 2. The questions put to Chapaton and Noble ought to have been allowed. The court declare that the time for having the work done was fixed by the contract. On an inspection of the contract this appears not to be the case. The most that can be said is, that, as a conclusion of law, it was to be done in a reasonable time. It could not be immediately, for the work had to be manufactured. We did not thus seek to vary or enlarge a written instrument; but an agreement being part in writing and part in parol, we sought to show the parol part. In such a case, as I have argued, the whole contract may be shown by both species of evidence, and then it is for the jury to determine from the whole evidence what the real bargain was. 5 Whart. 598. 3. Where no time within which work is to be done is expressed in a contract, the legal effect of the instrument is that it must be done in a reasonable time; and while we can not change the terms of the instrument by parol evidence, or alter its legal effect, the question as to what is the reasonable time under it must be determined by proofs aliunde. That fact must be settled by testimony in pais-2 Pars. on Cont. 551 and note e; 16 Pick. 227, 231; Moody and M. 300. 4. The question of reasonable time being one to be settled by testimony, the contemporaneous declarations of both parties who understood the subject better than anybody else, and especially of the plaintiff himself, touching that very time, if not evidence of a binding contract resting partly in parol, are certainly competent evidence as declarations and admissions of the parties bearing directly upon the question. 5. In connection with the question of time, the evidence offered was competent and very important as bearing on the question of damages. STANGE v. WILSON. Having done the work on a special agreement, but not in time, plaintiff was entitled to recover only the amount of benefit which, under all the circumstances, the defendant had received from the work done. 2 Greenlf. Ev. § 104. Moore & Griffin, for defendant in error. 1. The testimony offered by plaintiff in error was properly excluded. It was competent for either party to incorporate in their contract a limitation as to time. Not having done so, the law steps in and requires performance within a reasonable time.-11 Mich. 531. This case is clearly within the well established rule that parol evidence is not admissible to vary a written contract. 2. A contract is not void by reason of the omission as to time of performance or payment. The legal effect of the contract is, that the work shall be performed within a reasonable time, and payment made on delivery.—7 Durnf. and East, 121; 1 East, 203; 13 Wend. 285; 1 Hill, 579. The contract was executed on the part of the plaintiff below, and he was entitled to recover under the common counts, the price stipulated.-1 Doug. 513; 11 Wend. 417; 22 Id. 576; 2 Wall. 1. CAMPBELL J. Wilson sued Stange for the value of certain iron work, which turned out on the trial to have been furnished under a written contract, containing only an agreement that Wilson should make "all the iron work, consisting of wrought and cast iron, according to plans furnished by G. W. Lloyd, architect, for Detroit and Milwaukee Railway Depot, for and in consideration of the sum of $5,000." The time of furnishing the iron was not referred to, and the time of payment was also left in blank. The only question properly 17 MICH.-X. STANGE 7. WILSON. presented by the record is, whether certain testimony was properly excluded, the defense resting on the claim that the work had not been furnished as soon as it ought to have been. On the trial, the question was asked on cross-examination of one of the plaintiff's witnesses, "When the plaintiff had agreed to have said work done?" Another witness was asked on cross-examination, "Within what time it was that the plaintiff was to have the work in question done for the defendant?" Both of these questions were excluded, on the ground that parol proof could not be received, because the contract must speak for itself concerning the agreed time of performance. The defendant below, in his defense, "offered to show by evidence that, at the time of making said written contract, it was agreed by parol that the work in question should be furnished by the plaintiff as fast as it might be required by the masons and carpenters, who should do the work on the building for which such work to be furnished by the plaintiff was intended; the defendant proposing, in making such offer, to follow up such evidence by testimony that the plaintiff had failed to furnish such work and materials as so agreed, and failed to furnish them as fast as required by said masons and carpenters," and to show consequent damThis was also rejected. age. It was claimed on the argument that this testimony was admissible on two grounds: First, To remedy a defect in the written agreement by parol; and, second, To show what was reasonable time. There is no ground for maintaining that such proof is proper to complete or supplement the written agreement. It is very plain that an agreement to do a thing within a definite time can never be identical in spirit or substance with an agreement to do it within a time not fixed, and which in law is to be merely a reasonable time. And where the written contract is left in that indefinite shape, au |