59 P. 105 | Ariz. | 1899
This action was brought by plaintiffs and appellees herein against J. C. Adams and wife, appellants herein, in the district court of Maricopa County, on the eleventh day of December, 1896, to recover $3,131.04 and costs, for labor and material furnished under certain contracts in the construction of the Hotel Adams, in Phoenix, and the foreclosure of a mechanic’s lien on the property for that amount. Two contracts are set out in the pleadings, called “Contract A” and “Contract B,” dated on April 23d and June 2d, respectively, which specified minutely, and at considerable length, the terms and provisions under which all materials were furnished and labor performed. The plaintiffs alleged a further and verbal contract for labor and material beyond that covered by the written contracts hereinbefore mentioned, which was denied in the answer, the defendants claiming that the labor and materials were all provided for in the second written contract. The defendant J. C. Adams demurred to the complaint—First, on the ground that the allegations do not state facts sufficient to constitute a cause of action; second, that it appears on the face of the complaint, and from the contract attached thereto, which is a part thereof, that at the time of the commencement of-this action there was nothing due on said contract, and that the action was prematurely brought.
The contract was made for “all brick laid in the walls of the building now being erected upon the corner of Center Avenue and Adams Street, and commonly known as the ‘Hotel Adams,’ upon the following terms and conditions,” among which are: “The walls of said building, when completed, are to be measured,” etc. “The parties of the first part agree to pay 75 per cent of the value of the brickwork that shall be laid in the walls, upon an estimate which shall
1. The first and second errors assigned are directed to the ruling of the trial court in permitting the plaintiffs, over defendants’ objection, to amend their complaint on the trial, and after the plaintiffs had rested. These rulings will not be reviewed by this court. The amendment of pleadings during trial is largely a matter of discretion, and in this instance the amendment was by • substitution, so that the record does not enable this court to determine the scope or effect of the amendments, there being no exhibit of the original complaint. The only text furnished in the record is of the complaint as it read after the last amendment, with no means of determining what constituted the original complaint, or what part of the text resulted from the first and second amendments, respectively.
2. It is next alleged that the court erred in denying def end-ants ’ motion to dismiss the action at the close of plaintiff’s
3. The motion to dismiss, made after the plaintiffs rested, was based upon the theory that the plaintiffs had failed to sustain by any evidence the alleged verbal contract; that the terms of the written contract would exclude the possibility of any such verbal contract. The plaintiffs alleged that all material furnished, and all labor performed, under said contracts, were done under the direction and supervision of the architects, Millard & Creighton, mentioned in said contracts A and B, and the special superintendent of said work, employed for the purpose by the defendant J. C. Adams, and that the said material and labor were duly accepted by the said -architects and superintendent as the work under said contracts progressed, and without complaint or protest on the part of said architects or superintendent. Plaintiff O’Connor testified, in answer to the question, “What verbal contract did you have, if any, with Adams with reference to the building of the one-story kitchen?” “We were told that they were ready to start, and we went on and got the brick there. They told us to commence hauling the brick.” On cross-examination he testified as follows: “We hauled brick on the ground for construction of the kitchen before Adams returned from Chicago, and before we were notified to go ahead with the work. We never said a word about the job. •We were anxious to go on with it. Mr. Adams and Mr. Guthrie never said anything to us about the price, nor what we were going to charge, but we done this work without any stipulation, and we did not know whether we were going to get $7 or $10 per thousand, and Mr. Adams did not know anything about it. We charged them $7 a thousand. Guthrie,
4. It is next claimed that the court' erred in refusing to construe contracts A and B, set out in plaintiffs’ complaint, when the contracts themselves were not ambiguous or uncertain, and in submitting the same for construction to the jury. The disposal of the proposition involved herein will render unnecessary the determination of many of the questions presented in the other assignments. The rule is well settled that when the terms and language of the contract are ascertained, in the absence of technical phrases, or the existence of latent ambiguities, rendering the subject-matter of the contract uncertain and doubtful, the office of interpreting its meaning belongs to the court alone. “It would be a dangerous principle to establish, where the parties have reduced their contracts to writing and defined their meaning by plain and unequivocal language, to submit their interpretation to the arbitary and capricious judgment of persons unfamiliar with legal principles and the settled rules of construction.” Brady v. Cassidy, 104 N. Y. 155, 10 N. E. 131. This contract is clear, free from ambiguities, and easily understood. The parties themselves have plainly expressed in writing what is included in the contract. The contract expressly provides that the plaintiffs shall furnish all material and do all the brickwork in the construction of the Hotel Adams, according
It is next claimed that, in submitting the case to the jury, the court erred in refusing to hold, as a matter of law, that as to contract B, set out in plaintiffs’ complaint, this action was premature, and to so instruct the jury. The contract provided that the defendants shall pay the plaintiffs seventy-five per cent of the value of the brickwork that shall have been laid in the walls, upon an estimate which shall be furnished by said architects every two weeks, and shall pay them the full amount remaining due within sixty days after said work has been completed, inspected, and accepted by said architects, Millard & Creighton. The evidence presented established the fact that seventy-five per cent of the value of the brickwork, as shown by the estimates of the architects, had been paid as required, and that the claim could exist for only the twenty-five per cent which would become due within sixty days after the work had been completed, inspected, and accepted by the architects. The plaintiff O’Connor testified that they completed the work some time in November,—about the 7th. The architect Millard gave the date as about the 15th of November. The testimony of all agreed that the work was measured up on the twenty-eighth day of November. Plaintiff O’Con-nor testified that he had a verbal acceptance of the building from the architect on the morning of November 28th; plaintiff Cottrell, that, some time about the 2d of November,—not positive as to exact date,—Mr. Creighton told him they were willing to accept the building as a good job. Millard & Creighton, the architects, both testified that they had never given a verbal or written acceptance of the work under that contract; that plaintiffs had demanded an acceptance, and the reason they had not given them an acceptance was that the work was not in accordance with the contract, and that was the only reason they refused to give an acceptance of the building; that the building was practically and substantially completed at the time of the measurement, November 28th, and they were willing to accept it as substantially completed, with the exception of some failures to comply with certain requirements in the contract, which were fully brought out
Sloan, J., and Davis, J., concur.