234 F. 817 | 8th Cir. | 1916
John Erickson, a resident of Kansas, made a written contract with J. C. Berg, a resident of St. Francis, Texas, on April 16, 1913, to pasture for him 1,000 steers and to “furnish plenty of good grass, water, and salt during the grazing season of 1913” to them for $7 per head, which Berg agreed to pay. Erickson furnished the grass, water, and salt to them during May and June, but the most severe drought which had been known in that part of
The action in replevin and the suit in equity were tried together by the court below without a jury by consent of the parties. The court-decided that Erickson had an agister’s lien upon the cattle for the value of the grass furnished in the months of May and June, and for certain expenses which he incurred and the value of certain services which he rendered in caring for the cattle when they were ill, and in feeding them at the end of the grazing season, to the amount of $2,999.41, and rendered a judgment in the action in replevin for the return to him of the cattle, or for the payment to him of that amount. The court also held that Erickson was absolved from liability for his breach of his contract to furnish plenty of good grass by the unusual drought, and it rendered a decree in the suit in equity that Berg was indebted to Erickson in the sum of $2,999.41, that Erickson should have judgment for this amount in his action in replevin, and that Berg should take nothing on account of the damages he sustained by reason of Erickson’s breach of his contract. Berg challenges the judgment by writ of error, and the decree by an appeal.
Erickson agreed to furnish plenty of good grass to the cattle throughout the grazing season of 1913. He failed to perform this contract, to the damage of Berg in the sum of $20,000, because the unpre-cedent drought made it impossible for him so to do. Did this impossibility of performance, which arose subsequent to the making of the contract, out of the unusual drought, the act of God, relieve Erickson from liability for the damages inflicted upon Berg by his failure to perform his contract?
Where an obligation or a duty is imposed on a person by law, he will be absolved from liability for nonperformance of the obligation if his performance is rendered impossible without his fault, by an act of God or an unavoidable accident. But this rule is not generally applicable to contract obligations.
Thus in Jones v. United States, 96 U. S. 24, 29, 24 L. Ed. 644, a contractor agreed to deliver a certain kind and quantity of cloth to the United States in specified installments at fixed times. After he had delivered some of the installments, the factory which was making the cloth burned without his fault, and this made it impossi • ble for him to deliver the remainder of the cloth at the specified times, although he, at great expense, caused it to be manufactured and ten
“Impossible conditions cannot be performed, and if a person contracts to do what at the time is absolutely impossible, the contract will not bind him, because no man can be obliged to perform an impossibility; but where the contract is to do a thing which is possible in itself, the performance is not excused by the occurrence of an inevitable accident or other contingency, although it was not foreseen by the party, nor was within his control. Chitty, Contr. 663; Jervis v. Tompkinson, 1 H. & N. 208.”
In Chicago, Milwaukee, etc., Ry. Co. v. Hoyt, 149 U. S. at page 14, 13 Sup. Ct. at page 784, 37 L. Ed. 625, the Supreme Court states the rule on this subject in this way:
“There can be no Question that a party may by an absolute contract bind himself or itself to perform things which subsequently become impossible, or pay damages for the nonperformance, and such construction is to be put upon an unqualified undertaking, where the event which causes the impossibility might have been anticipated and guarded against in the contract, or where the impossibility arises from the act or default of the promisor. But where the event is of such a character that it cannot be reasonably supposed to have been in the contemplation of the contracting parties when the contract was made, they will not be held bound by general words, which, though large enough to include, were not used with reference to, the possibility of the particular contingency which afterwards happens.”
In Northern Pacific Ry. Co. v. American Trading Co., 195 U. S. 439, 466, 467, 25 Sup. Ct. 84, 49 L. Ed. 269, the railway company, during the Chinese-Japanese War, made a contract with a shipper to carry from Newark, N. J., to Japan by a specific steamer leaving Tacoma at a certain day, 2,000 tons of lead, which was contraband of war. Time was of the essence of this contract. The company carried the lead to Tacoma and put it in the steamship in time, but the subcollector of the port unlawfully refused to give the ship its clearance on the ground that the lead was contraband, and the master unloaded it, took his clearance, and sailed. The result was that the lead did not reach Japan until six weeks after it would have arrived there, if it had gone on the specified ship. When it árrived, the war had ceased and the price of lead had fallen. The shipper sued for damages, and the defense was' that the railway company was absolved from liability by the unforeseen impossibility of performance caused without its fault by the act of the subcollector. The Supreme Court construed the contract to have been an unqualified undertaking to ship the lead by the steamship named, and held the railway company liable for the damages which resulted from the unauthorized and unforeseen act of the subcollector. It said:
“Tbis contract, in view of all the facts, we think was made in contemplation of trouble arising from the character of the lead as contraband of war. * * -* Under these circumstances it ought not to be held that the mistaken action of the deputy collector in refusing to give the clearance should operate as an excuse for the nonperformance of the contract, which was not thereby rendered illegal. It cannot be affirmed that such possible refusal was*823 not within the contemplation of the contracting parties when the contract was made. Many causes, it was known, might operate to obstruct the transportation of articles contraband of war. This particular form of impediment may not have been actually within the minds of the parties to the contract; but there was, as the agreed facts show, present to their minds the fact that there might be trouble in procuring the transportation of the lead because of its character as contraband of war, and in the light of those facts the contract was made, and in substance ratified after it was made. The railroad receivers took the risk of this, as of other obstructions, in making the contract, and they ought to be held to it.”
In the light of these principles of law and authorities, the decisive question in this case becomes: Was the contract of these parties an absolute agreement by Erickson to furnifeh plenty of good grass to the cattle during the grazing season of 1913, or a contract to furnish good grass unless by an unprecedented drought it should become impossible for him to do so? Basic rules for the construction of contracts are: The purpose of every agreement is to record the intention of the parties when their minds met, and the object of all construction is to ascertain and enforce that intention. The court should, so far as possible, put itself in the place of the parties when their minds met upon the terms of the agreement, and then, from a consideration of the writing itself, of its purpose, and of the circumstances which condition its making, endeavor to ascertain what they intended to agree to do, upon what sense and meaning of the terms they used their minds actually met. Accumulator Co. v. Dubuque St. Ry. Co., 12 C. C. A. 37, 41, 42, 64 Fed. 70, 74; Salt Rake City v. Smith, 104 Fed. 457, 462, 43 C. C. A. 637, 643; Fitzgerald v. First National Bank, 52 C. C. A. 276, 284, 114 Fed. 474, 482; American Bonding Co. v. Pueblo Investment Co., 150 Fed. 17, 27, 80 C. C. A. 97, 107, 9 L. R. A. (N. S.) 557, 10 Ann. Cas. 357. Where, in the application of a contract to its subject-matter, an ambiguity or uncertainty arises, which cannot be removed .by an examination of the agreement alone, parol evidence of the circumstances under which it was made, and of statements made in the negotiations which preceded it, may be admitted to resolve the ambiguity and to prove the real intention, of the parties. Kilby Mfg. Co. v. Hinchmann-Renton Fire Proofing Co., 132 Fed. 957, 961, 66 C. C. A. 67, 71; Stoops v. Smith, 100 Mass. 63, 66, 67, 1 Am. Rep. 85, 97 Am. Dec. 76; Foster v. Woods, 16 Mass. 116, 117; Sargent v. Adams, 3 Gray (Mass.) 72, 77, 63 Am. Dec. 718; Mumford v. Gething, 7 C. B. (N. S.) 305, 321; First National Bank v. North, 2 S. D. 480, 486, 51 N. W. 96; Herring v. Boston Iron Co., 1 Gray (Mass.) 134, 138; Hinnemann v. Rosenback, 39 N. Y. 98, 101, 102; Proctor v. Hartigan, 139 Mass. 554, 556, 2 N. E. 99; Thorington v. Smith, 8 Wall. 1, 13, 19 L. Ed. 361; Lonergan v. Buford, 148 U. S. 581, 588, 13 Sup. Ct. 684, 37 L. Ed. 569.
Ret us apply these rules to the interpretation of this contract. On its face it is free from ambiguity. By it Erickson agrees, without exception or qualification, to furnish plenty of good grass for the cattle during the grazing season of 1913. Plis counsel argue that his real agreement was that he would furnish plenty of good grass during the season unless an unprecedented drought should make it impossible for him so to do, and that in that case he should he absolved from lia
In view of these facts, the situation of these parties when this contract was made, the circumstances surrounding them, and the unqualified undertaking of Erickson expressed in the agreement converge with compelling power to force the mind to the conclusion that the minds of these contracting parties met in the intention that Erickson should, and that he did, guarantee plenty of good grass for these cattle in these pastures where he put them during the entire grazing season, without exempting or intending to exempt himself from liability in the case of any impossibility of performance that might result from unprecedented drought, fire, or other act of God or accident. ■ It was common knowledge that droughts were not unusual in Kansas. It was common knowledge that they decreased the growth, of grass. It was common knowledge that one could not tell by the examination of pastures in Kansas, of which he had no previous knowledge, in the spring of the year before the 13th of April, whether or not they would produce sufficient grass for 1,000 cattle throughout the coming summer. Berg knew nothing of their productive capacity; Erickson knew all about it. The question whether or not the pastures would produce plenty of grass for 1,000 head of cattle throughout the season, and whether or not the droughts that visited some parts of Kansas would be so severe as to prevent such production, could not have failed to be present in the minds of each of these parties when they made this contract. Those were the crucial questions before them, and the unprecedented drought which prevented the performance- of the contract, “the event,” in the words of the Supreme Court, “which causes the impossibility, might have been anticipated and guarded against in
This conclusion makes it unnecessary to consider or decide the question, discussed in the arguments and the briefs, whether or not, if Erickson was absolved by the act of God from his liability on account of his failure to furnish plenty of grass in July, August, September, and October, he could recover compensation for furnishing it in May and Tune; for on the next trial he will be credited with the entire contract price of the pasturing, because the measure of Berg’s damages is the difference between the value of his cattle as they would have been at the end of the grazing season, if Erickson had furnished plenty of good grass, less the contract price he would have been required to pay, and their value as they actually were at that time. Erickson will also be entitled to an allowance for those expenses he incurred and those services he rendered caring for and feeding the cattle,, which his contract to furnish plenty of good grass and his duty to prevent, as far as possible, damages on account of his failure so to do, did not require him to incur or render.
Counsel for Berg argue that this court should find these amounts from the evidence before it and render a judgment for the proper amount in his favor. It is not denied that, as the action at law and the suit in equity were tried together by ‘the court without a jury under a stipulation waiving the latter, this court may have the power as a court of equity so to do. But it is certain that it has the power to direct a new trial of the action at law, and that it ought to do so, because all the evidence upon the amount of Berg’s damages appears from the record in hand to have been introduced on his behalf. The court announced its decision that Erickson was absolved from liability for Berg’s damages by the drought while Berg was introducing his evidence, and the record fails to show that Erickson presented any
The judgment in the action at law and the decree in the suit in equity must therefore be reversed, with costs against Erickson, and the case must be remanded to the court below, with directions to grant a new trial; and it is so ordered.