#### Roach v. Board of Directors of St. Francis Levee District.

Opinion delivered March 23, 1925.

1. Evidence — parol evidence' varying written contract. — Admission of'parol evidence that an “Estimate1 and . Information Sheet” containing specifications for construction of a levee was attached to and made a part of a written contract by reference does not violate the rule against varying written contracts by parol evidence. ’ , .‘ '■' '' ' '

2. Levees — construction op contract. — Special clauses in á contract for Construction of a levee as to-payment for extra work necessitated iby subsidence of the foundation, *held*to govern, con- ■ .fiicting general provisions therein.

3. Contracts — -intention of parties.; — The, intention .of parties must control in the .construction .of contracts.

Appeal from Crittenden Circuit Court; *G. E. Keck,*Judge;

affirmed.

*Hughes & Hughes,*for appellants.

*Wils*Davis, for appellee.

Humphreys, J.

This, suit is one.at law 'brought by appellants against appellee to recover . $3,913.18 for additional work required to be done.in the construction of certain levees on account of the, settlement of the foundation. The additional work required to. be done to make-the levees the proper height, on account of the subsidence of the foundation, was 13,039.9 cubic yards. The dispute between the parties arose oyer whether a sheet -of paper entitled ‘ ‘ approximate estimate and information sheetn was made a part of the contract, for constructing the levees by reference, or whether it was an item oiily of the: negotiations leading up to. the. contract.

■The cause was submitted upon the pleadings which presented this issue and the evidence adduced, at the conclusion of which both parties requested a directed verdict, and the court instructed the-jury to. return a verdict for appellee. A judgment was rendered in accordance with the directed verdict, from which is this appeal.

*365The record' reflects that the appellants entered into a written contract with appellee to ■ construct certain levees for :$0‘42 per cubic yard, which'contained the following parágráph: . •

> “The said work is to' be Constructed and finished as described in' the specifications and the standard Mississippi River Commission specifications hetet'ó J attached, which aré hereby made a part of this, contract, ágr'ééábly to the directions, from time to time,'of the said7- engineer or his assistants, on or about the first day of’January,' ii thé year 1921.” ' ' - ,7 -

Printed specifications of both the board df directors St.-Francis Levee District and of the-Mississippi/River Commission were attached to the-contract.-'. The standard Mississippi River Commission specifications'-which were so attached contained the following provision:! v. -

> • “Settlement of Foundation. Should-the contractor desire payment for restoration of yardage due to ¡settling of foundation, he must apply to the -contracting officer for instructions regarding the erection- of structures'for •the determination thereof, in advance -of- any--, work -op sections on which such payment should be made, and -he must erect at his own expense, prior to any work thereon, 'such structures aS may then be required by the coatract-•ing officer. Should these requirements be fulfilled; .-the 'contractor will be paid for the restoration of yardage due to settlement Of foundation at "the same-rate's as-the Other embankment, but he Will receive-no compensation for such restoration -unless the1 instructions;,of the.contracting officer in'regard -to the determination of quantities shall havé been fully complied 'with.’,•■ -: - ; • -•

The printed Specifications of appellee contained'no 'provision for payment on account of the Subsidence 'of thfe foundation. H. N. Pharr, ho we vet, testified, over the'- -objection and exception of -appellants; that the “approximate estimate and information sheet-’? constituted a part of and was attached to the1 printed spOcifi-"Cations- of appellee, which were' referred to'' and máde a part of the-contract at the time it Was signed, ¡and that *366Mr. Stansell, one of the contractors, was informed and knew that it was attached as. a part of the specifications of the levee hoard referred to , in the contract. This “estimate and information sheet” contained a number of specifications, viz., the manner in which payments should be made, the width, slope and topping of the levee, the location of the borrow-pits, and, lastly, the clause in reference to payment in case the foundation should settle. The clause is as follows: “Any abnormal settling of levee foundation, in excess of 5 per cent, of height of levee, will be paid for by levee 'board at contract price per cubic yard.”

Appellants. contend for a reversal of the judgment upon two grounds: first, that the court erred in'admitting oral testimony to the effect that the “estimate and information sheet” was a part of the specifications of appellee which were referred to. and attached to the contract and made a part thereof; and second,, that, if correctly admitted, the court erred in construing the contract to mean that appellants were only entitled to pay for yardage placed on account of the settling of the foundation in excess of 5 per cent, of the height of the levee.

(1). We cannot agree with appellants in their view that the “estimate and information sheet” and the oral testimony to the effect that it was attached to and made a part of the contract contravenes the rule that parol evidence cannot be admitted to contradict a written contract. According to the undisputed testimony, the “estimate and information sheet” was attached to and made a part of the contract by reference to the specifications of appellee, which specifications included the sheet. The testimony showed that appellants’ attention was specially called to this specification, and that it was attached to the contract as a part thereof at the time the contract was signed. The cases of *Doniphan, Kensett & Searcy Railroad Company*v. *Mo. & N. Ark.*Rd. *Company,*104 Ark. 475, and *Boston Store*v. *Schleuter,*88 Ark. 213, cited by learned counsel for appellants in sup*367port of their'contention that said sheet ánd the oral testimony relative thereto was inadmissible, are not in point. In the first case, a letter written in the course of the negotiations and not made a part of the contract was properly excluded, and in the second case, the written bids which were made prior to the execution of the contract and not made a part thereof by reference were also properly excluded. The difference between these cases and the ease at bar is that the “estimate and •information sheet” was made a part of the contract, whereas the letter and bids were not.

(2). The two clauses relating to payment for extra work caused by the settling of the foundation are in conflict. The specifications of the Mississippi Rive? Commission provided that abormal settlement in the foundation shall be paid for by appellee, whereas the specifications of appellee provided that said' appellee shall pay for that part of the work necessitated by the subsidence of the foundation in excess of 5 per cent, of the height of the levee. It is apparent that the specifications of the Mississippi River Commission in this respect were general and that the specifications on this Subject in appellee’s specifications were made special by the “estimate and information sheet.” The attention of the parties was called particularly to this matter by. the engineer of the levee board, so the detailed specific, clause must govern, for it expressed the intention of the parties. The intention of the parties must-control in the construction of contracts. *Mutual Reserve Fund Life Assn.*v. *Minehart,*72 Ark. 630; *English*v. *Shelby,*116 Ark. 212.

No error appearing, the judgment is affirmed.