158 Minn. 320 | Minn. | 1924
Lead Opinion
The controversy is concerning the classification of the materials moved by plaintiffs in the construction of the Fond du Lac-Wren-shall road, in St. Louis county. There is no dispute as to the quantity moved, which was 120,752 cubic yards. The contract provides for classification in these words:
“Excavation shall include all materials of whatever nature encountered, which shall be classified as follows:
“Earth shall include all sand, clay, gravel and other materials of every description, as found, which are not included in the following classification for loose and solid rock.
“Loose rock shall include all slate, shale or other rock which cannot be plowed with a ten-inch road plow and four horse team but which can be quarried or loosened with a pick without blasting even though the contractor may'resort to blasting to facilitate the work; also all detached rock or boulders measuring not more than -J cubic yard each.
“Solid rock shall include all rock in masses, which cannot be loosened with a pick, also all detached rock or boulders measuring not less than cubic yard each.”
The dispute is this: The court found that out of the materials moved there were 8,481 cubic yards of “loose rock”, and 11,090 cubic yards of “solid rock”. Defendant contends there were only 6,900 cubic yards of “loose rock” and 192 cubic yards of “solid rock”. The price for moving the “earth” was 62 cents, the “loose rock” $1.10, and the “solid rock” $2.25 per cubic yard.
We are all agreed that the learned trial court correctly determined the quantity of material coming under the classification of “loose .rock”. Defendant went on the theory that, no matter how
The trial court found that 10,898 cubic yards of a very hard substance, composed of silica and clay, which could neither be practically plowed or picked and had to be blasted, should be classified as “solid rock”. The Chief Justice and Justice Quinn are of the opinion that the court was in ■ error, and that it should have been placed in the first or residuary class called “earth”. Justice Dibell and the writer are of the opinion that the trial court was correct in its classification. Both sides have fully argued their views to their associates without a resultant change of view. The finding of the trial court is therefore sustained on a division of opinion. It is unnecessary to state the individual views of the 'Court. They carry no weight. No precedent is made. There is no opinion in which to concur and no decision from'Which to dissent.
The remaining assignment of error affecting the amount of recovery relates to the interest allowed. The board of county commissioners 'accepted the work as completed August 10, 1921, and the court gave interest from that date. Since a claim cannot be paid under the provisions of section 674, GL S. 1913, until 15 days after it is allowed by the board, defendant argues that it does not draw interest until the expiration 'of that time. When the work called for by the contract was completed and accepted as such by the board, the money earned was due and payable. There was no occasion to present a claim therefor to the board for any action.
gome rulings during the trial are challenged. Defendant offered to show the total amount of the cost of explosives used in the job to be $926.74. Upon objection the evidence was excluded. Error is assigned. At most this related to a collateral matter. There was no offer to show that it would have required the purchase of more worth of explosives if there had been 10,898 cubic yards of sandstone, or limestone formation in the job instead of that amount of the hard sand clay the court ■ classified as “solid rock”. It may be admitted that the extent to which explosives were used in the actual work bore somewhat upon the hardness of the material encountered and the difficulty of moving the same; but, after all, it related to collateral matters as to which the trial court has a large discretion whether to investigate or not. The same holds true as to the cost of moving material with plow, pick and scraper at the tests made subsequent to the completion of the contract.
The result is that the order must be affirmed.
Dissenting Opinion
(dissenting.)
I do not agree to or with the conclusion of Mr. Justice Holt and of Mr. Justice Dibell in the foregoing opinion which in effect affirms the lower court by a divided vote of this court. This situation, the large amount involved, and the public interest in the controversy, in my judgment, justifies me in stating my reasons for dissenting to the views of my associates and I consider it the imperative duty of both sides of this controversy to disclose, under the unusual circumstances confronting us, such reasons as they may have to sustain their conclusion.
A piece of the material in controversy, that calls for a construction of these specifications, was produced in this court on the argument and put into a glass of water and in a few moments it was mud. This is the stuff that is now judicially given the dignity of “solid rock.”
The classification of materials will follow the principal constituent therein; but this particular material in controversy is of uniform quality and there is no confusion because it is recognized as half one thing and half another. It is practically 100 per cent strong in its own individual constituency.
In my opinion this material is not rock, therefore cannot be “solid rock”. Not being “solid rock”, we are not concerned with the clause “'which cannot be loosened with a pick” as included in the third classification.
Upon the trial of the case the able counsel for plaintiff said he did not claim this material was “solid rock” because of anything you might call it, but because under the. specifications it could not be moved by picking or quarrying. This assertion disregards entirely the subject of the specification which expressly limits solid rock to rock.
Not being “solid rock”, we direct our attention to the second classification, covering “loose rock”, and see by plain words that that is confined to slate, shale or other rock, etc. (not other material). We are not concerned with the question as to whether the material can be plowed, picked or quarried until we first find slate, shale or other rock. Clearly this we do not find. By this process of exclusion, we have eliminated divisions 2 and 3 of these specifications and we find in division one, the classification which, by the use of clear, plain and unambiguous words, includes this material: “Earth shall include all sand, clay * * * and other materials of every description * * * which are not included in the following classification for loose and solid rock.”
The residuary clause is written in the first division. If this material, that readily yields to water and becomes mud, is not “solid
To construe this language as meaning that all material, instead of the narrower term “all rock” that cannot be loosened with a pick, is “solid rock”, leads to absurdities of conclusion and meaning not reasonable or practicable and clearly out of line with what the parties to the contract intended. If the language of this clause, and the other clauses, are taken just as written, and construed in a sensible, practical manner, so as to give effect to the intention of the parties, such absurdities of meaning will be avoided.
We have but to turn to section 9 under the general caption of “Grading”, on page 963, to discover further evidence in support of the contention that the terms “rock, sand, gravel and clay,” are used in their precise and definite meanings as those words are ordinarily used and understood.
Rock, sand, gravel and clay are deemed materials of value, any one of which the engineer in charge may direct to be disposed of in a particular manner. The use of the several words to describe differ
The correct decision of this question of classification turns largely on the intention of the parties to the contract as expressed in the language adopted by them in framing that contract. What the parties agreed to by their solemn compact the court must carry out. The court cannot change the terms of this contract or con- ■ strue away its true meaning and intent, as understood by the parties thereto, at the time it was adopted as their binding agreement.
If it were possible to vary and limit the meaning of plain words by usage — assuming this could be done at all — which is doubtful, plaintiff must show a usage uniform, general, presumably known to all the parties, and not local, partial or personal. Dickinson v. City of Poughkeepsie, 75 N. Y. 65, 77. I think this has not been done.
The specifications in the contract with their many precise definitions and directions are employed to protect the rights of both parties, and insure to the contractor, within limits, pay for the several units of work performed at the agreed price therefor, and to protect the owner against being required to pay for classes and kinds of work on a different basis than that agreed upon in the specifications.
There is nothing in the clause relating to earth classification which indicates that the word “clay” is used other than in its ordinary significance.
Plaintiffs, or at least their expert, Mr. Darling, undertakes to say that in the classification of earth the words “all sand, clay, loam, gravel” are surplusage and redundant and have no meaning. It seems, however, clear that the specific terms, “sand, clay, loam, gravel” were used to indicate the more common forms of earth expected to be encountered, and to give a forecast of what might be expected of a similar nature under the general term, “and all other materials of every description, as found, which are not included in the following classification for loose and solid rock.”
Clay cannot be so hard and tough, as long as it is clay, to be classified as rock. The word “rock” in the contract should be construed to have been used in its plain, ordinary and popular sense. Fruin v. Crystal Ry. Co. 89 Mo. 397, 14 S. W. 557.
The issue presented merely involves our putting a construction upon a contract. The language is plain and clear. It was not for a witness, even an expert witness, but was for the court to construe this language. Cargill v. Thompson, 57 Minn. 534, 59 N. W. 638. The construction must always be such as the language used will reasonably bear. The court cannot adopt a construction of any legal instrument which shall do violence to the rules of language or to the rules of law. The construction of all written instruments belongs to the courts alone, whose duty it is to construe all such instruments. If the meaning of the instrument by itself is affected with uncertainty, the intention of the parties may be ascertained by extrinsic testimony.
If the language used presents a patent ambiguity as to its meaning, then parol evidencé may be received to aid the court. Board of Trustees v. Brown, 66 Minn. 179, 68 N. W. 837. But such am. biguity does not exist here. When parties have deliberately reduced their engagements to writing, in terms precise and unambiguous, their intention must be gathered from the whole instrument, and the language thus chosen to express their meaning, and parol evidence is inadmissible, to add to, contradict or alter such language, or to support a construction at variance with the fair, plain import of the words themselves. City of Winona v. Thompson, 24 Minn. 199; Case v. Young, 3 Minn. 140 (209); Baldwin v. Winslow, 2 Minn. 174 (213).
Words are to be given their ordinary, popular meaning, unless it is obvious that the parties using them do so with a different meaning. Paust v. Georgian, 147 Minn. 149, 179 N. W. 735. Words are also to be construed in the sense in which a prudent and reasonable man on the other side would understand them. Symonds v. N. W. Mut. Life Ins. Co. 23 Minn. 491, 502. If this material is not rock in the ordinary popular meaning of that word, the court should say so and classify it as earth. The language being free from doubt, resulting from technical terms, it presents a question of law for the determination of the court. Bell Lumber Co. v. Seaman, 136 Minn. 106, 161 N. W. 383. In fact, where language is unequivocal, rules of construction have no application. Northern Welding Co. v. Jordan, 150 Minn. 12, 184 N. W. 39.
I concur in the dissenting opinion of the Chief Justice.