The opinion
The opinion of the court was delivered by
Garrison, J.
The special findings were not against the weight of the evidence. The construction of the written contract is a court question. Dpon the case before us it is clear that Jaeger 'entered into some contract with respect to every portion of the specifications’; hence, under the clause headed “Guarantee,” he either guaranteed the results therein stated or he contracted so to guarantee. Eor the purposes of the present action no distinction can be drawn. Where there is no statutory objection and no controlling indication that a separate and more formal contract was mutually contemplated *42 by the parties, an agreement to do a certain thing and an agreement to agree to do it are legally identical. 7 Am. & Eng. Encycl. L. (2d ed.) 141.
Jaeger’s contract must be deemed to be co-extensive with the guarantee clause of the specifications.'
The remaining point was treated as if it raised the question whether a contract that is impossible of performance is susceptible of being broken. If the present contract was such an one, the position of the defendants would not be materially benefited. School Trustees v. Bennett, 3 Dutcher 513.
it is, however, scarcely correct to regard the performance of this guarantee an impossibility; it is certainly inadmissible so to regard it upon this poslea, which shows the precise cost of performing it. The distinction is both plain and practical; to guarantee that an engine shall run without motive power may be treated as an impossible undertaking, while to agree. that it shall run on ninety per cent, of the needed power is merely to expose one’s self to the cost of furnishing the additional ten per cent, of power. Upon none of the grounds urged should the rule to show cause be made absolute.
This disposition of the motion for a new trial leaves the motion for judgment free from doubt or difficulty. Judgment will be given for the plaintiff for the sum mentioned in the special verdict.