138 P. 195 | Mont. | 1914
delivered the opinion of the court.
The pleadings in this case unfold with progressive elaboration. In all they occupy 169 pages of the transcript, and to produce them here, to present even an abstract of their essentials, would take so much space and serve such little purpose that a bare statement of the ultimate issue must suffice.
The respondent water company (plaintiff below) recovered judgment against the appellant, city of Butte, for $11,445 made up as follows: $8,464.50, with interest, for certain fire-hydrant water furnished the city in the months of July, August, September and October, 1911, under a written contract dated December 31, 1907; $1,524.85, with interest, as the reasonable value of certain water for street sprinkling, furnished the city in July, August, September, October, November and December, 1911; and $416.40, with interest, as the reasonable value of certain water furnished the city in July, August, September, October, November and December, 1911, at its corral, crematory and crematory residence; and of labor and material furnished in setting a water meter at the crematory in July, 1911, setting two hydrants in September, 1911, and laying a certain water
The material paragraphs of the contract in question (which we have numbered for convenient reference) are as follows:
“(2) That the party of the first part (the water company) for and in consideration of the covenants and agreements hereinafter contained, and to be kept and performed by the said party of the second part (the city), agrees that it will furnish to the said party of the second part, all hydrant and water supply necessary for fire and general municipal purposes for a period of ten years from and after January 1, 1908, and ending on the 31st day of December, 1917.
“(3) The said party of the first part further agrees that it will furnish to the said city of Butte, during the term of this contract, and keep supplied with water four hundred and fifty-two (452) fire hydrants, as the same are now placed at different points within the city of Butte, and that it will keep at all times said fire hydrants in good repair and ready for use for fire purposes for the sum of twenty-two thousand six hundred dollars ($22,600) per year, being $50 per annum for each of said hydrants.
“(4) It is further agreed upon the part of the said first party that it will furnish to the said city of Butte, and keep supplied with water all hydrants installed by said city in excess of the said four hundred and fifty-two (452) hydrants at the rate of $50 per annum for each hydrant, and that each and all of such hydrants shall be placed and located as the fire committee and fire marshal shall direct, and that the said party of the first part will at all times keep the same in good repair ready for use for fire purposes.
*395 “(5) It is.further agreed upon the part of the party of the first part tliat it will furnish to the said city during the term of this contract all water that shall be required by the said city for flushing the public sewers, and for the use of the public buildings in the said city free of charge, provided, however, that the said city provide outlets through which such water shall be furnished, and provided, further, that reasonable rules as to the time of sewer flushing shall be agreed upon between the city and the company, so as not to impair the efficiency of the system fojr fire protection. * * *
“ (7) The said second party, in consideration of the agreements hereinbefore contained to be kept and performed by said first party, agrees that it will pay to said first party the sum of $50 per annum per hydrant, for the period of ten years from and after January 1, 1908, in equal monthly installments, and the further sum of $50 per annum,for each hydrant which may .be added under the conditions hereinafter set forth.
“ (8) It is further understood and agreed by and between the parties hereto that the said second party shall have the right at any time to order the water mains of the said first party extended upon any street in any part or portion of the said city, during the term of this contract, and that whenever the said .second party shall order said mains extended the said second party hereby agrees to and with the said first party to take and use of the said first party at the established rate hereinbefore mentioned, at least one fire hydrant for every city block so ordered to be laid; it being further understood and agreed that in no case shall more than three hydrants be placed for each one thousand feet of such main extensions. * * # ”
1. According to the appellant, the above contract is so clear
Whether a document is or is not ambiguous is a matter of impression rather than of definition. This is obviously so, because every provision may be as clear and definite as. language can make it, yet the result of the whole be doubtful from lack of harmony in its various parts. The language used is to be resorted to in the first instance, but the conclusion to be reached depends, not upon the verbal clarity of the particular sentences or paragraphs, but upon the view to be taken of the contract ip its entirety. (O’Brien v. Miller, 168 U. S. 287, 42 L. Ed. 469, 18 Sup. Ct. Rep. 140; Page on Contracts, sec. 1112; 9 Cye. 579.) Recognition of this may be found in all the books upon the snbject, culminating in our Code provision that “the whole of contract is to be taken together, so as to give effect to every part, if reasonably practicable, each clause helping to interpret the other.” (Rev. Codes, sec. 5030.) Can it be said, then, that,
We are not unmindful of the provision of our Code that “repugnancy in a contract must be reconciled, if possible, by such an interpretation as will give some effect to the repugnant clauses, subordinate to the general intent and purpose of the whole contract” (Rev. Codes, sec. 5041); but this itself is a rule of interpretation rather than of construction, and the general intent and purpose of the contract is the very matter that is put in doubt. “However broad may be the terms of a contract, it extends only to those things concerning which it appears that the parties intended to contract” (Rev. Codes, sec. 5037); and, granting that the contract before us may be construed so as to cover and include water for sprinkling, corral and crematory purposes, that it need not be so construed is apparent. In such a situation there is ambiguity within the meaning of the law which opens the contract to interpretation by the aid of evidence alkmde, so as to give effect to the mutual intention of the parties to it at the time it was made. (Rev. Codes, secs. 5025, 5036; Lozes v. Segura Sugar Co., 52 La. Ann. 1844, 28 South. 249; Pressed Steel Car Co. v. Eastern Ry. of Minnesota, 121 Fed. 609, 57 C. C. A. 635; Uinta Tunnel etc. Co. v. Ajax Cold Min. Co., 141 Fed. 563, 73 C. C. A. 35.).
3. But the contract is not subject to interpretation by the parties or by anyone else concerning any matter upon which it clearly speaks. We think this principle was infringed in the
The cause is remanded to the district court, with directions to correct the judgment as above suggested; the judgment when so corrected to stand affirmed.