The major portion of the briefs for both parties is taken up with the discussion of the principal contention in the case referred to and upon which the greater portion of claimed errors relied upon is assigned. On the part of defendant it is urged that the obligations resting upon each of the parties to the suit under this contract are therein set forth clearly and concisely, and without ambiguity. The first matter of this contention over which dispute arose was relative to "rimming out" the well. The agreement of the plaintiff, as determined by the contract, was to bore and complete the well to the depth of 2,000 feet for the sum of 50 cents per lineal foot. The casing which was to be used in the well was to be furnished by the defendant. In this respect it does not appear to us that there was any ambiguity in the terms of this contract, or that it requires any extraneous proof of any usage or custom as to what was intended by the parties to the contract. In drilling and completing this well to the depth of 2,000 feet, by the terms of the contract, it was contemplated that casing would be required, and it is evident that, without casing, this well could not have been put in to that depth. The record is full of evidence uncontradicted to that effect.

The record shows that "rimming out" or enlarging the bore was necessary in order to make it large enough to receive the casing, which is driven down, as already explained, and this must necessarily have been within the contemplation of the parties when this contract was entered into, which provided that the casing should be driven down to solid rock, and fixed the price per lineal foot plaintiff was to receive for completing this test well to the depth of 2,000 feet. To drill this well to that depth without casing would have been an impossibility. No charge has been made or claimed for work done in driving the casing into this well, but provision is made in the contract that, in case it became necessary to draw the casing from the well, defendant was required to pay plaintiff five cents per foot for such work. It is evident, therefore,

that the matter of putting in and taking out this casing was passed upon and agreed to between the parties, and that all work necessary in putting in the casing was included in the price per foot agreed upon to be paid to plaintiff for putting down this well. The court was therefore in error in allowing evidence to be introduced as to usage and custom alleged to prevail in oil fields in respect to the price charged for "rimming." Such evidence is admissible in the absence of express stipulations, and where the meaning of the contract is equivocal, but is never admissible to contradict what is plain and unambig1 Greenleaf on Evidence, §§ 292, 294. The general rule is that a written contract cannot be varied or contradicted by the proof of usage. This has been announced by the United States Supreme Court in numerous cases, and the decisions of this court are uniform to that effect. Van Hoeson v. Cameron, 54 Mich. 609, 613, 614 (20 N. W. 609), and cases cited; Lamb v. Henderson, 63 Mich. 302, 305 (29 N. W. 732), and cases cited.

uous.

This disposes of all the errors assigned relative to the admission of evidence in the case showing custom and usage relative to oil wells in oil territory.

It is insisted by plaintiff that this contract was made in contemplation of the existing and known customs and usages in putting down oil wells in oil territory, relying upon the part of paragraph 6, already quoted, which provides that "the methods employed in casing such well shall be such as are usually employed in similar drilling and casing of oil and gas wells in oil territory." This provision relates solely to the methods employed in casing wells, upon which matters there appears to be no controversy in the case. The dispute does not arise over the methods employed in casing, but because of certain charges claimed for "rimming out" the hole in order to put in the casing, which we have already determined were improperly allowed under the terms of the contract. Error is assigned on account of testimony of plaintiff admitted in the case in support of the item of plain

tiff's claim for furnishing elevators and the charge of the court thereon, upon the ground that such elevators were part of the equipment necessary to be furnished by the plaintiff in performing his contract. The contract provides that plaintiff shall furnish all the equipment necessary for making the test bore. The plaintiff testified as follows:

"Q. I will ask you whether an elevator is any part of the equipment for the drilling of a well ?

A. It is. The elevator becomes necessary when they are putting in piping. It holds right under the collar and lowers the joints down."

Other witnesses in the case testified to the same effect. The question was submitted to the jury to be decided as a question of fact. An examination of the record does not show that there was any testimony to warrant the court in so charging. This was part of the necessary equipment required to be furnished by plaintiff under his contract.

On the part of defendant, as a claim of set-off, among other things, was a charge for procuring hydraulic jacks for the use of plaintiff in raising the casing out of the well, an item of $148 actual expense incurred by him. Upon this claim, the court instructed the jury that if they believed there existed a general custom in oil and gas well districts, familiar to the parties to this action, under which the defendant would be required to pay for the use of hydraulic jacks, then this offset should not be allowed. We do not find in the record any evidence to support such a charge, and from the contract it appears that plaintiff was to draw out the casing when necessary and receive five cents per foot for such work. This charge of the court was erroneous. The hydraulic jacks were necessary appliances and equipment to remove this casing, and, under this contract, the charge for the same by defendant was a proper one. The defendant claimed damages by way of recoupment for board of men, for coal, for labor, caused by unnecessary delay of plaintiff in the perform

ance of the work, and also for expenses for extra casing, including freight and other expenses, caused by the failure of plaintiff to properly case the well, and certain other items of cash claimed to have been expended on his account as set-off. It will be unnecessary and of no benefit to consider these matters, for the reason that upon another trial, which must be had, with the construction which we have given this contract and the determination made upon other questions discussed, they will present no difficulties to the trial court in the course of such trial.

For the errors pointed out, the judgment of the circuit court is reversed, and a new trial ordered.

STEERE, C. J., and MOORE, BROOKE, STONE and OSTRANDER, JJ., concurred.

In re KELLEY'S ESTATE.

BEDFORD v. KELLEY.

1. PRINCIPAL AND SURETY-RELEASE OF SURETY INSTRUMENTS-BILLS and Notes.

By extending the time for payment the payee of a note releases the surety, guarantor, or indorser who has not consented to the extension.

2. SAME DISTINCTIONS-GUARANTY.

Surety and guarantor are similar in that each promises to answer for the debt or default of another, the surety assuming liability as a regular party to the primary undertaking, while the guarantor's liability arises out of an independent collateral agreement by which he undertakes to pay the obligation if the principal fails to respond.

3. SAME-CONTRACTS-CONSIDERATION.

To release either, an extension of time must be more than a mere agreement to indulge or forbear, and must have the essentials of a binding contract, must be reasonably definite as to time, must be for a valuable consideration, payment of interest in advance being a sufficient consideration.

4. SAME-EVIDENCE-PAROL RULE.

Though evidence to show the relations of the parties and attending circumstances is admissible as an aid in interpreting or construing a writing that is doubtful or ambiguous, it is not competent to contradict the plain provisions of an instrument.1

5. SAME-REVOCATION-DEATH.

Makers of a demand note, as collateral to loans or advances made by a bank in which they were interested, continued liable while extensions of time were given by the bank to the corporation, until revocation by act of the guarantors or other act of the parties: the death of one of the guarantors terminated the progressive nature of the indemnity agreement and extensions of time to the principal debtor thereafter released the estate of decedent from liability.

6. SAME TERMINATION-REVOCABLE GUARANTIES.

Guaranties are of two classes; (1) the consideration being entire, passing wholly at one time, (2) the consideration passing at different times and being separable or divisible: the former are revocable by the guarantor and do not terminate at his death, upon notice of the fact; the latter may be revoked as to subsequent transactions by the guarantor, upon notice to that effect, and are terminated by his death and notice of that event.

7. SAME-LACHES-GUARANTY.

Delay for about four years after decedent's death in attempting to enforce collection of an indebtedness, guaranteed by a joint note of decedent and others, where the principal debtor was a corporation that was solvent over two years after such 'On the question of parol evidence as to whether guaranty was a continuing one, see note in 39 L. R. A. (N. S.) 740.

As to effect under negotiable instrument law of extension of time to principal to release surety or guarantor, see note in 31 L. R. A. (N. S.) 149.

On the question of the effect of death of party on guaranty, see note in 23 L. R. A. 709.

As to extension of time by attorney as discharging surety, see note in 39 L. R. A. (N. S.) 62.