*1 al- See State, 122 So. 2d 40 Ala. App. State, so, Beard least,
To there evidence of the say very existence interest equitable mortgage security spite release. intent and faith questions good appellant
were for the I would affirm the jury. judgment.
ARKANSAS ROCK & GRAVEL COMPANY
et al v. CHRIS-T-EMULSION Inc.
Company, 76-20 2d 724 S.W. delivered
Opinion *2 Eckert, Keith, & for appellants. Clegg Clark, H. Smith, Williams, & William Eldredge by: Friday, for E. Jr., Sutton and Kilpatrick appellee. Joseph George The decision this case Smith, Rose Justice. contractual reference turns meaning parties’ 74.” The trial considered phrase to “the judge Spring its to the and submitted jury. to be ambiguous for, in the amount sued verdict was for the plaintiff-appellee, inter- with which that the plaintiff’s means jury agreed defendant For reversal the contract. argues pretation erred in other instructions and incorrect that the court gave on We affirm ground judgment respects. law, matter of there to recover as a was entitled being plaintiff of fact for no issue jury. Chris-T-Emulsion, to Ben M. successor
The plaintiff, is a principal asphalt. Company, supplier Hogan Gravel, a contractor. defendant, Rock & is Arkansas highway & 1973 Arkansas Rock Gravel fall of summer and early In the bid to the state to submit a highway depart- was planning 40. It was too Interstate on ment for an extensive job repair Before calendar work year. late for begun for Rock & asked Arkansas Gravel Hogan its bid submitting first that would be needed. Hogan’s a on the asphalt price a firm a firm offer. being pressed was not Upon quotation on to be reduced writing, Hogan September price, iden- That letter now in issue. the letter-contract wrote number, to be estimated asphalt tified the by job project 380,620 and a gallons, quoted at approximately required a that was 14 cents a essentially freight gallon plus that varied with the three counties were involved. charge that, testified because Hogan’s representative asphalt prices unstable, a were he inserted sentence that the very company did not use such letter-contracts: “This ordinarily quota- used tion with consideration the material will be Spr- of 74.” & Arkansas Rock endorsed its Gravel acceptance ing of the letter and returned it to Chris-T- copy Hogan. Emulsion succeeded seller. Hogan
Arkansas Rock & Gravel was the successful bidder for the work in 1974. repair Chris-T-Emulsion job began most of the at the on but supplied price, quoted it24 notified letter purchaser by quoted original *3 was 1974,” of price 20) the good only “through Spring (June and that thereafter the would be increased 29 to cents a price Arkansas Rock & Gravel the gallon. increase and protested refused to that for pay deliveries. The price subsequent plain- tiff this action the amount is that brought admittt due dly if it was entitled to increase its after June
We do not the consider rules of law to be controlling to open construction and effect of a dispute. written legal contract to be are determined as by court a of law where the of except language depends upon extrinsic evidence. Ins. Co. disputed Security of Hartford Owen, 720, 252 Ark. 480 558 (1972). S.W. 2d Here there was an as to the undoubtedly of ambiguity precise meaning 74,” “the phrase, because dictionaries Spring uniformly that is recognize considered to be the “spring” popularly March, months of but May, con- April, scientifically sidered to from the (about be vernal period equinox 21) March (about to summer solstice 21). Webster’s Second New International (1934); American Dictionary (1969). Heritage Dictionary
When involved, such a minor is ambiguity contract fail, not does because the be complaining party may fairly allowed to insist is that least upon interpretation instance, favorable to him. For Parker Motors v. Stin- Dolly son, 245 S.W. 2d (1952), 820 we upheld agree- ment which Stinson a by new promised Ford car purchase a from dealer. Even car to be though purchas- particular models, held
ed, available was not we specified, many among contract, the was breach of the seller that, the buyer’s upon have made recover the that he would entitled to profit him that which the smallest provided Similarly, model profit. insist, does, in this it case can as fairly plaintiff to it. definition of which is least favorable There remains the argument, appellant’s principal knew that the highway department requires undertook, made that the such those repairs, appellant each when between 1 and October year, April for the to be sealed warm weather is properly. enough contract was to con- It intended insisted parties’ form that policy. is, runs into
The trouble this squarely argument law, rule which rule. That is a of substantive evidence parol a from proving prior prevents party contemporaneous oral the written contract. that contradicts agreement Hoffman Late, 2d (1953). Ark. 260 S.W. It is true a contract is oral when the language ambiguous, proof show in- is admissible to that the was language negotiations will have that the words tended to “any particular meaning Walker, bear.” Kerr v. 321 S.W. reasonably not But rule does allow a party prove that clear and words were sub- oral testimony unambiguous *4 to a not attributable intended to have fairly meaning jectively of suit for The in that situation is a reformation remedy them. Restatement, Contracts, the contract. § contract before us is language The pivotal that the is “with consideration the stipulation quoted material will be in the of 74.” The in- used Spring appellant sists those were chosen a method of that words as that saying use of the material was to expected begin continue, 1974 and at least until at might quoted price, (and even if October the work was longer perhaps rate). at a well reasonable It be that proceeding may had mind when that purchaser’s representative meaning he so, endorsed his If letter-contract. it acceptance was his insist that made to the contract be obligation Instead, declare his he understanding. accepted language what he now cannot interpreted say reasonably that he As we out in contends intended. pointed Hojjman Late, for evidence rule lies justification supra, parol contracts; a that it to written for otherwise stability gives was that an oral testify party always might understanding he assumed in Here contrary obligation writing. an and signed essentially purchaser unambiguous agreement must bear consequences.
Affirmed.
Fogleman and dissent. Byrd, JJ., A. Fogleman, I do not Justice, dissenting. agree John as á were entitled to matter of law. appellants judgment The trial there was an issue judge properly recognized to the of the because of construction contract proper ambigui- was There at least latent and the sub- ty. court ambiguity mitted the of the to the jury meaning me, however, a correct It instruction. seems to that a car- dinal rule construction should have been stated to the jury and that submitted a correct appellant instruction which would have advised the doubt or jury any ambiguity about the of the contract was to be resolved against party prepared the Orsburn, who it. See Manhattan Factoring Corp. 785; S.W. 2d Stevensonv. Marques 2d 391. S.W.
The contention of that a contract was not in- appellee volved cannot be All of sustained. shows testimony clearly that all even when it con- as a parties, testifying, regarded tract, anot offer. The con- quotation unaccepted highway tract number was as the shown which letter subject constituted the number of agreement. approximate gallons which the was was made “quotation” specified stated. was It that the material should meet Arkan- sas Highway Department specifications. offer or “quo- tation” an required acceptance expressed ap- *5 not for the to furnish a but preciation, opportunity quotation, for “this business.” is This not a case where in- orders were offeror, vited or where appellee, offered to simply supply whatever Arkansas Rock & Gravel ordered. Company
812 involved construing
Appellee points up “in 74” to the duration the words by referring spring of 1974” of or as as limited being “quote” “through spring “for the of 74.” are treated being in the spring They as if read of 74.” majority opinion they “during Absent execution, I circumstances would surrounding that the words should treated as the agree treats majority But, them. circumstances, the circuit given court my there was evidence opinion correctly from recognized which it could be said that there was a latent ambiguity. from arises facts not disclosed in the
A latent ambiguity
26,
Dorr
40
instrument.
v. SchoolDistrict No.
Ark.
It may
concealment of the real
or intention of the
imply
writer which does
not
the face
used
upon
words
appear
until
are
in contact with collateral facts. It
they
brought
arises,
themselves,
not
as looked
words
at in
but
upon
those words when
to that which
describe.
applied
they
It does not
face of the
used in
appear
language
instrument, but occurs when the
to be
appears
language
clear,
fact,
but
is shown
intelligible, unambiguous,
some intrinsic fact or extrinsic evidence
be uncertain in
Conkel,
3A
409,
Conklev.
31 Ohio
meaning.
Ambiguity;
GJS
44, 285
(1972).
N.E. 2d 883
In
whether
App.
determining
exists,
a latent
a contract
read in
must be
ambiguity
light
of what the
its
intended
from
gathered
language
view of all
circumstances. Arkansas Amusement
surrounding
Cir.,
(8
also,
v.
57 F.
1932).
2d 466
Corp. Kempner,
Henderson,
See
Ellege v.
421,
In order the court exists, it consider it is obviously necessary biguity cir collateral facts as extrinsic evidence extraneous and Pa. cumstances. 2d 366 A. Logan Wiley, extrinsic evidence The rule is well settled that admissible exists. that a latent Hall Equitable show ambiguity Life (1940); McCar- N. W. Assurance Mich. Society,
813 567, Co., 340, 127 2d v. 372 Mich. N.W. ty MercuryMetalcraft 854 v. 952, (1964); 380 129 N.W. 2d den., cert. Widney U.S. Hess, also, See v. 342, 2d 233 Ellege 242 Iowa 45 N.W. Co., Ins. 3 Henderson, Easton v. supra; supra; WashingtonCounty 124, 16:23. To discover latent on ambigui Evidence § Jones the instrument to ascertain it is outside ty, proper go whether the words fit the facts when used aptly existing Hess, instrument was and the used. v. executed words Widney Co., Insurance v. America Company Milling supra; Queen Meyer Cir., 1930). determination, 43 F. 885 (8th In making courts themselves with the and cir may acquaint persons cumstances that are the of the statements subjects written instrument and themselves of the place position contract, who made the as to view cir parties so 272, cumstances as v. 90 Ark. did. Wood 119 S.W. they Kelsey, 258.
Once it was shown that there was a latent ambiguity, oral evidence was it. admissible to Ft. Smith explain Appliance Smith, Co. v. 583; 218 Ark. 236 S.W. 2d Paepcke-Leicht Henderson, Lumber v. Co. supra; Talley, Ellege supra. of the as to the of the is ad- Testimony words parties Henderson, missible. Parol evidence ad- Ellege is also supra. missible tó the situation and relation of the explain and the circumstances at the time execu- of the surrounding tion of Co., the contract. & Sklar v. Oil Wynn Phillips 332, 493 2d 439; Bushmaier, S.W. Clear CreekOil & Gas Co. v. 830. S.W. was reached agreement on October by acceptance Thweatt, officer M. of Ben & Com- George Hogan became who the chief pany officer of managing appellee, made offer after with other negotiations representatives Thweatt was familiar with Arkansas Hogan. Highway of the Department specifications prohibited application materials between 31 and October 1 or when April the air was below 60 He temperature knew degrees.
material was not to be used until and that it could springtime not be used before 1 and was not the April April begin- March, whether ning “spring,” April May March 20. He fix- knew had through appellee ed i.e., 90, from the issuance a work order working days, Ob- contract. highway department completion not the are same calendar
viously, working days days. cents, was increased from cents to 14 because *7 asked for a firm There was also evidence ten- appellee price. whose to show that assum- appellee ding Hogan, obligation ed, was interested in crushed stone selling appellee chips from for use in appellee bought chips Hogan performing this job. highway Harsh, who was Arkansas Rock & employed by John
Gravel took a on the Co. quotation September, Justice, representative Ivan from on the Hogan, eve of for the contract. He the bidding highway delivered the & officials of Arkansas Rock Gravel price Com- quotation Simmons, these, One Warren with talked on pany. Justice and asked for a firm When telephone figure. Justice returned the new Simmons asked that it confirmed in price and as a result the “contract letter” came into writing being. inferred well have that Arkanaas might Rock & jury Gravel based bid on its on the Company job agreement with appellee. work order was not issued until 1970. Sim- May
mons testified that been matters, had it not for rain and other have contract been highway might completed so, but that he had not to do even had expected though they to do so. He planned also said he theoretically that had not aware, been made conversation, in the telephone firm was based the contract price being completed of 1974. spring Ivan said sentence here was a Justice sentence added usual form of and that appellee’s quotation the intent was “how soon it was to be used.”
There was evidence contradictory from which the jury have found that was well might aware that appellee or firm was quotation based use of all material but I with during the cir- agree cuit there awas fact Under the cir- judge question. cumstances, the contract could have meant that the use only was to commence after beginning highway season and department’s continue sealing time during allotted for completion job. I have instruction previously
I see no reason why I reverse would not have been referred to should given. refused. of its because being judgment Mr. Byrd joins am authorized state I Justice this opinion. *8 Ersaleen HALL v. STATE of Arkansas 537 S.W. 75-222 CR delivered Opinion