3 Wash. 34 | Wash. | 1891
Lead Opinion
The opinion of the court was delivered by
By written contract between the parties; plaintiffs agreed to furnish defendant certain materials to be used in finishing a building in Spokane; certain of the materials to be furnished on board the cars at Minneapolis, on or before the 15th day of December, 1889, and certain other materials, to wit, the doors and paneled wainscoting and stairs, on or before the first day of January, 1890, and this provision occurs in the contract:
“And the second party, for and in consideration of the first party’s completely and faithfully executing the aforesaid work, and furnishing all the material therefor, so as to fully cany out this contract and design, according to its true spirit, meaning and intent, and by and at the times mentioned, and to the full and complete satisfaction of H. Preusse, superintendent, does hereby agree to pay,” etc., etc.
It is provided in the contract that the materials shall he furnished according to the plans and specifications and drawings, which are declared to be a part of the contract. The
“Q. Now I will ask you to state, Mr. Carter, whether or not it was possible to take the measurements requisite and necessary for the manufacture of the panel, wainscoting and stair work from the plans and specifications ?”
And also the following question:
“Q. I will ask you whether or not there is any general custom, in a contract of this kind, which establishes the fact or understanding in the business that certain measurements must be taken before work can be done, even where the contract provides it must be done according to plans and specifications ? ”
To the refusal of the court to allow this testimony to be introduced, the plaintiffs duly excepted, and assign it as error here. "We think the court erred in refusing to allow this testimony. It could not be introduced for the purpose of contradicting the contract, or to interpret it inconsistently with its language; but of explaining its meaning in the
As we read the cases cited by the respondent, none of them go to that extent. In Davis v. Galloupe, 111 Mass. 121, the plaintiffs, stone cutters, agreed in writing with defendant to furnish stone for his building according to the plans and specifications of an architect, and to do all the fitting and rebating necessary. Wooden patterns were necessary' for cutting the stone under the plans, and the plaintiffs procured and paid for them without asking the defendant or the architect to furnish them. Held, in an action to recover the amount paid for these patterns, that evidence of the usage of stone cutters in cutting stone for a building to purchase such patterns and recover the cost from the owner of the building was inadmissible. But it seems to us there is no parallel between that case and the one at bar. Here it was attempted to show that it was impossible for plaintiffs to comply with the contract without an actual measurement; that a general custom grew out of that fact, and that the parties contracted with reference to that fact. There the contract could be and was performed; and the court made that plain distinction, and inferentially announced the doctrine, that if the performance of the contract had been impossible without the patterns having been furnished by the defendant, the custom might have been shown, by the use of this significant language:
“As the plaintiffs actually prepared the patterns, it is obvious that it was not necessary that the defendant should furnish them to enable the plaintiffs to do the work.”
Partridge v. Insurance Co., 15 Wall. 573, enunciates the doctrine that the custom cannot be proven to vary or contradict the well expressed intention of the parties. In Sawtelle v. Drew, 122 Mass. 228, all that was decided was, that
“A custom, within the meaning of the law, if general, is incorporated into and becomes a part of every contract to which it is applicable; if local, of every contract made by parties having knowledge of, or bound to know, its existence.”
In Sanford v. Rawlings, 43 Ill. 92, a workman in marble had entered into a written contract to erect a monument, and a workman was called to testify “what in the trade of a marble dealer is meant by a contract to erect a monument,” and the court very properly said that—
“ It was wholly unnecessary to call a worker in marble to prove the legal import of a contract to erect a monument, or what would be understood by such a contract in the trade, because there could be no dispute as to its meaning. The law would attach to this language a precise signification.”
And so with the other cases cited by respondent. On a careful examination we do not think they go so far as to exclude the testimony offered in this case. In Stewart v. Keteltas, 36 N. Y. 388, a case on a level with the one at bar, the plaintiffs having contracted to erect and furnish a new building therein referred to, agreeably to the drawings and specifications made by defendant’s architect and signed by the parties, the court says:
“An objection to the offering of any excuse by the plaintiff for not performing his part of the contract within the time stipulated is properly overruled, and that under such contract, where the work to be performed by the plaintiff could not be performed until other work was done by defendant or his employes, the failure to have such preliminary work completed in season to enable the plaintiff to complete his within the time limited by the contract is a sufficient excuse for the plaintiff for not completing the work within the time.”
An investigation of the testimony in this case also goes to show that it was the understanding between the contracting parties that actual measurements were to be taken. This we gather from the testimony of the defendant himself. Among other things, on page 38 of the record, he says:
“Mr. Carter then offered me what I considered very good figures for the work, and I says to him, ‘Mr. Carter, that is a big advantage in dealing with you because I. have had some trouble about misfits when you deal by correspondence and get your work by plans; it has caused me a great deal of annoyance at my house and the parties were not there to get the actual measurements, and I prefer to give you the contract because you are here, and a man of that sort can figure and make his calculations.’ ”
So that by his own statement it appears that the measurement was notto be made by the plans and specifications, and that his principal inducement in entering into the contract with the plaintiffs was that the work could be done
Plaintiffs also complain of certain instructions given to the jury by the court as being a violation of § 16, art 4 of the constitution of Washington. Said article provides as follows:
“Judges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law.”
It seems to us the framers of the constitution could not have more explicitly stated their determination to prevent the judge from influencing the judgment of the jury on what the testimony proved or failed to prove. It is more restrictive than the constitutional provisions of any other state. The California constitution provides that the j udge may state the testimony; but our constitution evidently intends that the judge shall make no reference to the testimony for the purpose of informing the jury what it proves or does not prove, but shall content himself with declaring the law; for, after the inhibition in regard to his commenting upon the facts, this negative proposition occurs, “but shall declare the law.” This need not hamper the judge or embarrass him in giving the jury the law applicable to a case. He may state to the jury, “If you find from the evidence that such a state of facts exists the law is as follows,” etc.; or, “ If you find that such a state of facts is conclusively proven, the law is as follows,” etc. But to tell the jury there is no dispute in the testimony on a certain point, or that anything is conclusively proven, is going too far. The judge might think from the testimony that it was conclusively proven, and the jury might come to a different conclusion; or the jury might conclude there was some dispute in the testimony. It is the exclusive province of the jury to determine from the evidence what
In view of these errors, without discussing the other errors assigned, the judgment will be reversed and the case remanded to the lower court, with instructions to proceed in accordance with this opinion; and it is so ordered. „
Anders, C. J., and Scott and Stiles, JJ., concur.
Concurrence Opinion
I concur in the result, but desire to say that I do not think the language of the opinion as to the charge of the court was called for in this case, and, in so far as it decides that it is error for the court to instruct the jury that a certain fact is undisputed by the evidence, or that all the evidence as to any fact is on one side, I dissent; as, in my opinion, such instructions would not contravene the provisions of our constitution.