85 P. 559 | Kan. | 1906
Lead Opinion
The chief controversy is over the meaning of the contract. The plaintiff says that although the contract provides for a mill of a given capacity no test is prescribed by which that capacity is to be ascertained; that an actual test with the kind of wheat described in the contract is not necessary, and that such capacity may be proved by any competent evidence, citing Kinnard v. Stanley, 70 Kan. 770, 79 Pac. 661, and Edward P. Allis Co. v. Columbia Mill Co., 65 Fed. 52, 12 C. C. A. 511.
The contract expressly provides that when the machinery is operated so as to meet the requirements of the milling guaranty the defendant shall accept the mill and pay for it. It is a part of the guaranty that the mill will perform according to the guaranty when operated under the plaintiff’s own direction, and the defendant is required to furnish wheat, labor and power to operate the mill at its full capacity when the plaintiff is ready to do so. These terms can mean but one thing. Besides the existence of mill machinery which when properly set up shall have a given capacity, there must be an operation of the machinery in such a manner that it will demonstrate its powers.
The contract indicates that the defendant wanted a 200-barrel mill which would be the equivalent in all respects of those of his competitors, and which would make a barrel of flour from four bushels and.twenty-four pounds of No. 2 wheat; that he was willing to pay the plaintiff’s price for it whenever the mill produced the desired results, but that he wanted to see such results produced before parting with his money. The contract further indicates that the plaintiff, as a manufacturer of mill machinery, undertook to furnish the very kind the defendant needed, and agreed to wait for its pay until an actual working test of the mill
Since the mill must show for itself what it can do the character of grain to be used in making the test is important. The defendant says the special guaranty relating to the quantity and quality of flour to be made from a given number of bushels of wheat is to be considered as if standing alone; that it was written in a printed blank; that the printed clause relating to the kind of wheat to be supplied for a test run should be read solely with reference to the printed guaranty of an equal rating with other mills, and that it has no bearing upon the written -guaranty; and his conclusion is that any kind of wheat which will grade No. 2 when cleaned on the receiving separator, even though some of the grains be bleached and shriveled, will satisfy his obligation in respect to material for a test.
This interpretation of the contract appears to have occurred to the defendant after he had provided the wheat for two inconclusive tests. It would kill the effect of. the words “good, plump, dry milling” when the contract speaks of wheat to be' used in' showing a
This court cannot assume that there are no other accessible mills having an equivalent line of machinery, or that the quality, percentage and yield of flour produced by such mills from a given grade, quantity and quality of wheat cannot be ascertained. There is a likelihood at least that such mills exist, and that their owners have proved with perfect accuracy their exact capacity; and it may be that in order to fulfil the printed guaranty the plaintiff’s machinery must be able to produce a barrel of flour, with not to exceed three per cent, low grade, from four bushels and twenty pounds of No. 2 wheat.
The clause in which the words referred to occur is a very important one. It is the duty of the court to give effect to every word of the contract if possible, and to construe its written and printed portions together when they do not contradict each other. The obvious sense of this undertaking is that whenever a test run is to be made the defendant must furnish wheat, labor and power to operate the mill at full capacity, and that the wheat furnished must be good, sound, dry milling wheat at all events, whether attention be directed specially to matching some other mill in some particular or to the competency of the machinery to extract from wheat grains a high percentage of flour.
Since this mill has not been operated to prove that it has the capacity called for the condition precedent to payment of the price has not been performed. Since the defendant has not furnished wheat of the kind required to perform the condition he is not in a
■ There is no question in the case of the defendant defeating payment through a wrongful refusal to arrange the preliminaries of a test, or of a recovery by the 'plaintiff notwithstanding a wrongful refusal to operate the mill under- proper conditions.
The plaintiff says that if it requires a high quality, of No. 2 wheat to produce a barrel of flour from four bushels and twenty-four pounds the contract should be construed to apply only to wheat of the superior kind. This court has no judicial knowledge of how much flour may be extracted from different grades of wheat. The plaintiff guaranteed that its machinery would produce a barrel of flour, with not to exceed three per cent, low grade, from four bushels and twenty-four pounds of good, plump, dry No. 2 milling wheat, and the court will not assume that it contracted to do an impossibility, or anything unreasonable.
There is nothing before the court to call for its opinion upon the situation of the parties if performance of the strict conditions which they have imposed upon .themselves should be impossible, or upon the question whether or not performance by either of them may be excused, or, if excuses may be offered, which ones are valid.
Conceding, but not deciding, that, what may be termed secondary evidence of the capacity of the mill might be proper under some circumstances, still the plaintiff is not entitled to recover in this action on the findings of fact. Finding No. 22 relates to a local custom not pleaded as affecting the contract, and hence is outside the issues. There is no finding that the custom was known to either party, and they must be held to have contracted with reference to the law. There
Nor is the plaintiff entitled to a new trial under the provisional concession. The facts being found the court can apply the law, and will do so unless an erroneous theory of the law has prejudiced the trial, which does not appear. It is said the court erred in refusing to make additional findings of fact requested by the plaintiff relating to the efficiency and capacity of the mill, but such findings are not printed in the brief or further described, the evidence supposed to support them is not pointed out, and the assignment of error is not argued. Hence the matter will not be considered. No complaint is made that evidence relating to the capacity of the mill was improperly rejected. This being true, the facts found which are within the issues are to be regarded as the facts of the controversy.
The plaintiff claims that the second count of the petition was inserted on the theory that it may recover as in quantum meruit, notwithstanding a deviation from the contract. No such theory is discoverable in the count itself. It asks damages as in trover for the conversion of property owned by the plaintiff and to the possession of which the plaintiff was entitled. This cannot be done while at the same time the first count of the petition claims the price of the property on the theory that the plaintiff has parted with title by sale; that the defendant owns it and hence-is entitled to its possession. The' two theories are inconsistent, and an election was properly required.
The plaintiff says that, the machinery having been accepted and used, the burden was on the defendant to allege and prove that it was not up to the requirements of the contract, and cites Hoffman v. District of Hampton, 96 Iowa, 319, 65 N. W. 322, among other decisions, as authority. In that case the court said:
“Parties may well stipulate as to the character and*448 capacity of apparatus or machinery, to be furnished or improvements to be made, and make affirmative proof of performance a condition precedent to the recovery of the contract price.” (Page 324.)
The contract under consideration is of the kind there described. Besides, there has been no acceptance of the machinery in the sense that a performance of the guaranty is waived. The defendant was under no obligation to bring about a test of the mill. The plaintiff could do so at once, or delay as long as it saw fit. There is nothing in the contract or in the situation of the parties requiring that the mill lie idle until a compliance with the guaranty is shown, or requiring a forfeiture of the defendant’s contract rights upon his setting the machinery in motion. If the plaintiff has not been prejudiced in any. way, and there is no claim that it has been, simple use of the mill does not waive the test or shift the burden of proof.
The written and printed portions of the contract relating to the belting should be construed together, and the conclusion of the trial court upon that matter was correct. The plaintiff recovered a judgment upon its third' cause of action after proof which it was obliged to make. Upon other matters which occasioned the bulk of the costs both parties asked relief, and both were defeated. Under these circumstances the judgment that each party pay half the costs will not be disturbed.
The judgment of the district court is affirmed. The costs in this court are divided.
Rehearing
OPINION DENYING A PETITION FOR A REHEARING.
The opinion of the court was delivered by
In a petition for a rehearing it is suggested that the first paragraph of the syllabus is broad enough to indicate an approval of the third conclusion
The parties have not acted under the contract. The contract provides for a test run of the mill, to be made with wheat of a specified quality. The plaintiff has not insisted that the defendant furnish wheat of contract quality for a test. The defendant has not arranged for a test with wheat of that quality. No test of the character prescribed by the contract has been made. The defendant has not waived a test according to the contract. Therefore, the defendant’s obligation has not been matured, as the contract requires.
The fourth conclusion of law made by the trial court is correct as applied to the test run which the contract contemplates. .
Manifestly the court must here take leave of the controversy. Further discussion of the grading of wheat in the vicinity of the mill in 1903 would be bootless, and the petition for a rehearing is denied.
