266 P. 26 | Kan. | 1928
The opinion of the court was delivered by
The plaintiff prosecutes this action to recover the amount due under a contract for driving piling, and to recover damages sustained by reason of the defendants refusing to permit the plaintiff to complete the performance of the contract. Judg
The contract on which the plaintiff seeks to recover read as follows :
‘'Contract for Installation of Piling.
Aug. 18, 1925.
“Torson Const. Co., Kansas City, Mo.
“The undersigned, T. W. Hemingway, at Gulfport, Miss., this day enters into contract with the Torson Construction Co. of Kansas City, Mo., and it is understood and agreed by both parties hereto that the said T. W. Hemingway contracts to drive the piling at the rate of thirty-three cents per lineal foot to grade; also he further agrees to drive all of the sheet piling at the rate of five cents per lineal foot to grade, and all in accordance with the plans and specifications and approval of the engineers of the jobs known as the Blue river and Gooseneck sewers of Kansas City, Mo.
“Said T. W. Hemingway further agrees to drive all piling the maximum depth of twenty feet from top of ground with leader piles.
“It is also hereby agreed by both parties that the Torson Construction Co. will withhold twenty per cent of the cost of the finished contract until final completion and acceptance of said contract.
“It is also understood and agreed that if any of this work done on this contract by T. W. Hemingway is proven either faulty or defective through negligence, the said T. W. Hemingway hereby agrees to pay for all damages thereby caused. Signed: T. W. Hemingway.
“Accepted: Torson Const. Co. — By Chas. M. Torson.”
The court permitted evidence to be introduced to show the meaning of the phrase “to grade” as used in the contract. Forty special questions were answered by the jury.
1. The defendants contend that it was error for the court to admit evidence to show what was understood by the parties in the expression “to grade.” This contention is based on the argument" that the contract was plain and unambiguous, and for that reason evidence to explain its meaning was inadmissible. The plaintiff con- * tends that it was necessary to introduce evidence to show what the expression “to grade” meant and what it was understood to mean to the parties under the contract. The solution of this problem depends on the reading of the contract.
The contract may be read and reread, but its meaning cannot be ascertained except by the aid of evidence outside of it. The expression “to grade” is a technical term used in construction work and does not always mean the same thing. Plans and specifications and the approval of engineers are mentioned in the contract. Plans and
2. The defendants say it was the duty of the court to construe the contract; that the plaintiff was erroneously allowed to show a state of facts other than those alleged in his petition; and that the verdict was the result of the admission of incompetent evidence emphasizing immaterial issues. These three propositions are based on the contention that evidence to explain the meaning of the contract was inadmissible. These contentions necessarily fail because evidence was admissible to show the meaning of the contract.
In Royer v. Silo Co., 99 Kan. 309, 161 Pac. 654, this court said:
“Where an ambiguous expression is used in a written contract, it is proper to show by evidence what the parties understood and intended by the expression, and to submit to the jury, with proper instructions, the interpretation of . the expression as used in the contract.” (Syl. ¶ 2. See, also, Seymour v. Armstrong, 62 Kan. 720, 64 Pac. 612; Barrett v. Coal Co., 70 Kan. 649, 654, 79 Pac. 150; Rettiger v. Dannelly, 91 Kan. 61, 63, 136 Pac. 942; Riley v. Foster, 95 Kan. 213, 148 Pac. 246; Frazier v. Railway Co., 97 Kan. 285, 288, 154 Pac. 1022.)
3. Tire defendants say that—
“Plaintiff having, as we have shown, failed to perform his subcontract, and abandoned it, there was no foundation either in law or fact for the damages allowed in the sum of $13,259.13 for piles subsequently driven by Torson Construction Company which Hemingway claimed he should have been allowed to drive under the subcontract. The court ordered a reduction of $3,000 of the judgment, which was remitted.”
The defendants filed a motion to set aside a number of the answers to special questions submitted to the jury. It is argued that it was error to refuse to set aside those answers. This argument is based on the contention that the contract was not ambiguous and that evidence to explain its meaning was not admissible.
No error has been shown; the judgment is affirmed.