84 Miss. 259 | Miss. | 1904
delivered the opinion of the court.
The declaration of the oil mill claims five dollars per diem as liquidated damages under an alleged contract to pay that sum on failure of appellant to ship a Corliss engine, etc., on August 15, 1902, for every day the shipment was delayed beyond that time. The proposition of the company, accepted by the oil mill May 22, 1902, and thus becoming a contract on its face complete, is on a printed blank, the spaces filled in with writing, and begins thus: “We propose to make and deliver - F. O. B. - August —, 1902, -, unless delayed by strikes, fires or manufacturing contingencies beyond our reasonable control,” the engine, etc., describing the subjects of the manufacture. This proposition is signed in print by the company, “by [in writing] James Hunter Smith,” and it is accepted in writing by the oil mill, signed “R. V. Grarner, chairman; P. L. Mann, president; Charles McGrinnis.” This contract is followed in typewriting by attached specifications of the work to be done, more elaborate than appear in the accepted proposition. At the end of these are typewritten specifications, which are also in the shape of a proposition, and which provide that the oil mill should prepare the foundation, and that the company should furnish a mechanic to erect, if desired, at
We answer the first question in the negative. The rule is universal that, “if the written and printed matter can possibly be reconciled, this will be done, it being presumed that the instrument contains no clauses not intended by the parties.” 11 Am. & Eng. Ency. Law, 21. Here the original paper was to ship “-August —, 1902,-, unless delayed by strikes,” etc., and the written addendum simply fixes a date in August, and provides for damages per diem for delay in shipment; and we think it should be read as providing for the damages in
In answer to the second question, we think the “five dollars per day” means liquidated damages, and was not designed as a penalty, notwithstanding the words “to pay as forfeit.” 3 Parsons on Contracts, 157, et seq.; 1 Sutherland on Damages, sec. 283, p. 716. In the latter author is found a very elaborate consideration of the shades of adjudication on the question. The decisions are numerous and various in views, and we will not protract this opinion in their discussion.
Reversed and remanded.