115 Ala. 138 | Ala. | 1896
This was an action by appellees against the appellant to recover for the breach of a contract to pay the stipulated price for the boring of an artesian well. The correctness of the rulings of the trial court will depend largely upon the construction of the contract, which was in writing and is set out in haec verba in the first count of the complaint. The first count assigns as the breach the failure of the defendant to comply with the provisions of the fourth paragraph of the agreement. There was no objection made to the complaint. The special count declaring on the contract is followed by five common counts, claiming for work and labor done and materials furnished, &c.
The defense set up by many special pleas, the sustaining of demurrers to which constitutes the principal assignments of error, was that there had never been any satisfactory completion of the said well, or that said well as completed was not satisfactory to defendant, because
We cannot yield full assent to either proposition. In the construction of all contracts the object is to ascertain and, if-possible, effectuate the intention of the parties, so that performance may be enforced according to the sense in which they mutually understood it at the time it was made ; and to ascertain the intention it is necessary xiot only to examine the instrument itself, but also to consider the situation of the parties, the subject-matter, and the object it is intended to accomplish ; and every word and clause must be taken into consideration, and if possible, given some effect.—1 Brick. Dig. 386, § 161; Mason v. Alabama Iron Co., 73 Ala. 274. But, except in cases where mutual mistake or fraud is shown, a meaning cannot be forced into a contract in opposition to its text and repugnant to its terms. It is a rule of general application that whex’e parties have entered into written engagements with express stipulations, these
It may reasonably be assumed, in construing the contract, that both parties were ignorant of the quality of deep strata water that could be reached by the well. But both knew, or had reason to believe, that water from any intermediate strata would be unsuitable. And it was this ignorance as to the one and knowledge as to the other that probably led to the insertion in the contract of the third paragraph, the only one which makes any reference to the quality of the water, which reads : “The water flowing from said well is to be deep ' strata water, and no strainer will be placed to obtain a flow from intermediate or intervening strata, as water flowing from that source is likely to he of such quality as is not adapted to the use of the party of the second part.” The parties having in this paragraph provided that the water should be from deep strata, without any reference to its quality, and declared that water from any intermediate strata 'would not be suitable, we cannot conclude otherwise than that, either the defendant believed that the deep strata water would be suitable, or, being in ignorance as to its quality, it was the intention of the parties that he, and not the plaintiffs, should assume all risk as to its suitability. We are confirmed in this conclusion by the sixth and last paragraph of the contract, which may be considered, to some extent at least, as a construction of
On the other hand, it is not to be supposed that the parties inserted any important word or clause in the contract without intending that some effect should be given to it. It is the object of construction to ascertain for what purpose each clause and word was used, and to effectuate that purpose if it can be done without giving to it an effect repugnant to the other terms of the contract which clearly show the intention of the- parties. The fourth paragraph provides that the defendant “thirty days after the satisfactory completion of the well aforesaid mentioned, and compliance with the conditions promised by the party of the first part, will pay,” &c. The word “satisfactory” qualifies the phrase “and compliance with the conditions promised,” as well as the
Such being the contract of the parties, what were their respective rights and liabilities growing out of it? There is no reason of public policy • which prevents parties to a contract for the performance of work from agreeing that the decision of one or the other, or of a third person, as to the sufficiency of the performance shall be conclusive. Plaving voluntarily assumed the obligations and risks of a contract, their legal rights and liabilities are to be determined solely according to its provisions. Where the decision is left to a third person, the. authorities almost universally hold that his action, in the absence of fraud, or such gross mistake as would necessarily imply bad faith or a failure to exercise an honest judgment, is conclusive upon the parties.—Martinsburg & P. R. R. Co. v. March, 114 U. S. 549 ; Wangler v. Swift, 90 N. Y. 38; Tetz v. Butterfield, 54 Wis. 246; Stose v. Heissler, 120 Ill. 433 ; Boettler v. Tendick, 5 L. R. A. 270, notes. So, where by the terms of a contract to do a piece of work or perform services, the excellence of which is not a mere matter of taste or fancy, or to. furnish a piece of machinery or other article, the suitableness of which involves a question of mechanical fitness to do certain work or accomplish a certain purpose, the one party warrants the work or article to be satisfactory to the other, the weight of authority is, though the cases are not entirely harmonious, that there can be no recovery when the employer or purchaser is in good faith dissatisfied. And this is true where there is no express warranty that the work or article shall be satisfactory, but a provision making the payment contingent upon its being satisfactory.—Singerly v. Thayer, 108 Pa. St. 291; Howard v. Smedley, 140 Pa. St. 81; McCarren v. McNulty, 73 Mass. 139 ; Daggett v. Johnson, 49 Vt. 345 ; Johnson v. Roberts, 58 Vt. 599 ; Duplex Boiler Co. v. Garden, 101 N. Y. 387 ; s. c. 54 Am. Rep. 709, notes ; Doll v. Noble, 116 N. Y. 230 ; Campbell Printing Press Co. v. Thorp, 36 Fed. Rep. 414; Church v. Shanklin, 17 L. R. A. 207, notes; Gray v. Cent. R. R. Co., 11 Hun. 70 ; Silsby Mfg. Co. v. Chico, 24 Fed. Rep. 893 ; Exhaust Ventilator Co. v. Chicago, M. & St. P. R. Co., 66 Wis. 218. But much depends on the subject-matter and context of the contract. The
From what has been said it follows that the special pleas, to which demurrers were sustained, do not set up any legal defense to the action. The first series, numbered from one to five, go to the whole complaint, composed of six counts, and are no answer to the first count. All, except the second, set up the defense that the completion of the well was not satisfactory because the water was unsuitable for use in defendant’s boilers. With respect to the second, which avers that there never has been any “satisfactory termination and acceptance of said work” as provided in the contract, and that the well was not satisfactory to defendant and had never been accepted by it, it should be observed that the contract does not make the payment contingent upon the acceptance of the work ; but, on the contrary, both the cash payment is to be made and the notes given “thirty days after satisfactory completion of the well.” The acceptance, according to the terms of the contract, simply fixes the date when the notes are to be made payable, namely, three and six months “from the said thirty days after the satisfactory termination and acceptance of the work.” It should also be observed in considering this plea and others which simply allege
It is unnecessary to consider in detail the rulings of the trial court on the evidence. Some of tile testimony offered was relevant on the issue presented by dhe eleventh plea, which went to the common counts only, but the record shows that the trial of the cause proceeded only on the special count declaring on the contract. Evidence as to the quality of the water and the effect of its use on defendant’s boilers was inadmissible under the special count. The question propounded to the witness, Rubira, as to whether the well had been completed to the satisfaction of defendant, was relevant, if- intended as merely preliminary to further examination for the purpose of eliciting legal evidence as to the good faith and causes of the dissatisfaction. The court may exclude legal evidence, at any stage of the trial,, though objection was not made to its introduction.—Edisto Phosphate Co. v. Stanford, 112 Ala. 493 ; 1 Brick. Big. 887, §§ 1190-97.
The court erred in giving charges numbered-1 and 2 at the request of plaintiffs, since they predicate plaintiffs’ right to recover solely upon the fact of the completion of the well in compliance with their contract, and ignore the provision of the contract which makes the payment contingent upon the ‘ ‘ satisfactory completion of the well”. The charges requested by the defendant were properly refused.
Let the judgment 'be reversed, and the cause remanded.