89 Mo. 397 | Mo. | 1886
Plaintiffs sued defendant on a quantum meruit for .work and labor and materials furnished in straightening and grading road-bed and removing old track and relaying the same on the line oi said Crystal railway between Crystal Station on the Iron Mountain road and Hay’s‘Landing on the Mississippi river. The balance claimed is $15,382.33. They obtained a judgment from which defendant has appealed. I de not deem it necessary to copy into this opinion the pleadings or instructions, or to detail the evidence except ■so far as may be necessary to a proper consideration oi the questions involved.
The matters in controversy are the following:
1. Plaintiffs claim for the excavation of 2,685 cubic yards of flint rock at $4.45 per cubic yard, and defendant contends that they are only entitled to ninety-five cents, the contract price for the excavation of solid rock.
2. Plaintiffs claim compensation for the excavation of rock, made in consequence of the width of the cul being in excess of that required by the contract, while ■defendant insists that this extra excavation was not required by the contract, or made at defendant’s request, but was a consequence of the negligent and unskilful manner in which plaintiffs did their work.
3. Plaintiffs claim compensation for other extra work which defendant contends was not done at its request or in consequence of any changes in its plans.
4. The defendant claims, as liquidated damages
It was also agreed that defendant should pay for •said work the following prices: “For earth excavation (five hundred feet average haul) twenty-two cents per cubic yard ; for loose rock (five' hundred feet average haul) twenty-two cents per cubic yard ; for solid rock (five hundred feet average haul) ninety-five cents per •cubic yard.” The court by its instructions left it to the jury to determine the meaning of the term “solid rock.” No evidence was offered by plaintiffs to show that the term “solid rock” was used in the contract in any other than its plain, ordinary and popular sense. The word “solid” is defined by Webster as follows: “Having the constituent parts so firmly adhering as to resist the impression or penetration of other bodies ; hard, firm, compact, opposed to fluid and liquid, or to plastic, like clay or to incompact, like sand.” “Custom may control and vary the meaning of words, giving •even to such words as those of number, a sense entirely •different from that which they commonly bear.” 2 Pars.
But courts 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 as soon as the true meaning of the words in which they are couched, and the surrounding circumstances, if any, have been ascertained as facts by the jury.” Neilson v. Harford, 8 Mees. & W. 806-823. ‘ ‘ If the meaning of the instrument by itself is affected with uncertainty, the intention of the parties may be ascertained by extrinsic testimony.” 2 Pars. Cont. (6 Ed.) *564. “Where the whole matter passes in parol, all that passes may sometimes be taken together as forming part of the contract, though not always, because matter talked of at the commencement of a bargain may be excluded by the language used at its termination. But if the contract be in the end reduced to writing, nothing which is not found in the writing can be considered as part of the contract.” Abbott, C. J., in Kain v. Old, 2 Barn. & C. 634. The only testimony introduced by plaintiffs' was to the effect that it was worth four or five times more to excavate flint rock than limestone ; but their own witness testified on cross-examination that solid rock would be a compact mass of rock, as the contract says, and that if the contract did not speak of any material except solid rock and loose rock, solid'rock would mean in that contract any kind; of rock if it was solid.
The question propounded by plaintiffs to this witness, viz : “ Suppose that you were shown, at the time the bid was made, limestone rock, how would the words ‘solid rock’ be ’ construed in that case,” should have been excluded; The hypothetical fact, if conceded, would not affect the meaning of the words “ solid rock*”
• As to the second and third points, which may be •considered together: For any excavation of rock in excess of what was called for by the contract, occasioned by the unskilful or negligent manner in which plaintiffs ■did the work they had undertaken, they cannot recover. If, however, plaintiffs at defendant's request or in consequence of any change in the plans and specifications for the work did more work than was contemplated by the contract, they are, of course, entitled to recover for such additional work.
With respect to defendant’s claim for liquidated damages: After the original contract was entered into -and plaintiffs had performed a considerable portion of
Nor was the testimony admissible that defendant’s agent represented to another party, who contemplated making a bid on the work, that the rock to be excavated was limestone rock. That he made such a statement to another party was wholly irrelevant. If he had stated to another party that there was flint rock as well as limestone in the hill, it would, if the issue were properly framed as to fraud, be admissible to prove knowledge on the part of defendant. Parties are bound by the terms of their contract, and while it may be a hardship upon plaintiffs to be compelled not only to answer for liquidated damages for the delay in the- completion of the work, but to accept ninety cents per cubic yard for excavating flint rock, it is the contract they made, and the courts cannot make a different one for them. “ If a party, b.y his contract, charge himself with an obligation possible to be performed, he must make it good unless its performance is rendered impossible by the act of God, the law or the other party. Unforeseen difficulties, however great, will not excuse him.” Dermott v. Jones, 2 Wall. 9; Paradine v. Jayne, 2 Alleyn, 27; Beebe v. Johnson, 19 Wend. 500; School Trustees v. Bennett, 3 Dutch. 513.
This cause was tried on a different theory of the law than that herein indicated as the correct one, and as to fraud in procuring-plaintiffs to make the contract, it is not properly pleaded by the plaintiffs. There is no allegation in the petition, or in the replication, that in order • to induce plaintiffs to make the contract, defendant, knowing there was flint rock in the excavation to be
The judgment is reversed and the cause remanded.-