Burroughs v. Joint School District No. 2

155 Wis. 426 | Wis. | 1914

ViNJE, J.

The whole controversy turns upon whether the word “value” in the specification quoted in the statement of facts means market value or contract value. By contract value is meant the value of the material and work furnished based upon the contract price and not upon the market value of the same, if that differs from the contract value. When a building, whose component parts are determined in detail as to form, size, and material by exact' drawings and specifications, is agreed to be constructed for a specified sum, each component part bas a value proportional to and based upon the contract' price. Erom such plans and specifications and contract price' a supervising architect can determine with substantial accuracy the value of the work and material that have gone into the building at any stage of its erection. The trial court held that the contract value and not the market value of the work and material furnished each month was meant, and that since only seventy per cent, of the value of the building was completed by the plaintiffs, and they had been paid the sum of $28,948.90 on a contract price of $44,467.28, they had been paid ninety per cent, of the value of the material and work furnished by them. The plaintiffs claim they had furnished material and labor of the market value of $41,426.48 and that they were entitled to receive ninety per cent, of such sum.

Usually the term “value” means market value, and in the absence of circumstances showing that' another meaning shall be given it, such customary meaning will control. But if it be found that such meaning, when applied to a particular contract, or conditions growing out of it, leads to results clearly not contemplated by the contract' read as a whole, and it is susceptible of another meaning which harmonizes with all the provisions thereof, such other meaning must be held to have been within the contemplation of the parties when they entered into it.

If it be true, as plaintiffs claim, that the market value of the work and material was $41,426.48 in completing seventy per cent, of the value of the building which they agreed to build for $44,467.28, and that they were entitled to receive ninety per cent, of the market value of the work and material furnished each month, then they, at the same relative cost for the balance of the building, would be entitled to receive the whole contract price long before they completed it. That such was not the intention is clear from that part of the specification which reads, “and the balance thirty days after tbe completion of tbe building according to tbis specification.” It is a rule in tbe construction of a contract that, if possible, effect should be given to every part of it. Under plaintiffs’ construction and tbe conditions shown, tbis part of tbe contract with reference to tbe payment of tbe balance would be annulled. If seems clear from tbe whole contract that it was tbe intention of tbe parties to provide for tbe payment of ninety per cent, of tbe value of tbe work and material furnished each month based upon tbe contract price, and that tbe balance should stand as a guaranty of tbe faithful performance of the contract on tbe part of tbe plaintiffs till thirty days from it's completion. Such construction gives full force and effect to every part of tbe contract and leads to no absurd results. It enables tbe supervising architect who is to furnish tbe certificate, by an inspection of tbe work done and material furnished each month, to ascertain its proportional value based upon tbe contract price, without having to inform himself what tbe market value of each kind of material and labor is for such month. It gives tbe builder each month ninety per cent, of what be has put into tbe building measured by what be is to receive for it’ when completed, and leaves a guaranty of ten per cent, for faithful performance as contemplated by tbe contract'. Under such a construction it is immaterial whether tbe market value is above or below tbe contract value, as tbe builder each month receives bis pro rata amount. Under a contrary construction be might receive tbe full contract price before tbe completion of tbe building, or be might, if tbe market value was much less than tbe contract value, be compelled to forego receiving from fifteen per cent, to twenty per cent, or more of the contract price till after tbe expiration of thirty days from tbe completion of tbe building. In coming to tbis conclusion we have not overlooked the' cases of Howard Co. v. Baker, 119 Mo. 397, 24 S. W. 200, and Nat. S. Co. v. Long, 85 Ark. 158, 107 S. W. 384, bolding to tbe contrary. They seem to do so upon the sole ground that value means market value irrespective of context or o'f other provisions of the contract. Eor cases bearing upon the question in which it has been held that relative or contract value is meant under somewhat similar contract provisions, see Fidelity & D. Co. v. Agnew, 152 Fed. 955; Kelley v. Syracuse, 10 Misc. 306, 31 N. Y. Supp. 283; Hawkins v. Burrell, 69 App. Div. 462, 74 N. Y. Supp. 1003.

No practical construction of the contract binding upon the parties was given it by the fact that defendant overpaid plaintiffs. When such overpayments were discovered further payments were refused. • There can be no sound basis for a claim of practical construction in the absence of knowledge of the facts and circumstances to which the construction relates-

Plaintiffs contend the case should in any event be sent back for the taking of further evidence either by the court or a referee upon their claims for extras and upon the cost of completing the building by the defendant.. It appears, however, from the record that they-had ample opportunity to present such evidence upon the trial. Cases cannot be tried piecemeal. The circuit judge was justified in including in his findings of fact the statement, “Should the supreme court affirm the judgment entered upon these findings, it was further stipulated that that should end this litigation.”

A number of other questions are discussed in the briefs, but owing to the construction placed upon the contract they become immaterial.

By the Court. — Judgment affirmed.