132 F. 957 | 8th Cir. | 1904
The Hinchman-Renton Fire Proofing Company, a corporation, brought an action against another corporation, called the Kilby Manufacturing Company, for $5,819.-35, which the plaintiff alleged to be the reasonable value of materials furnished and labor performed for the defendant in the erection of a sugar factory. The defendant answered that this work and these materials were not furnished at its request, but that the materials were furnished and the labor was performed in-fulfillment of a contract between the plaintiff and James J. Cooke. There was a judgment for the plaintiff for $6,082 and costs, which the defendant has sued out this writ of error to reverse.
The trial of the action developed these facts: The Kilby Company had undertaken with another corporation to construct for it a sugar factory. Thereupon James J. Cooke made a contract with the Kilby Company to construct this factory for $130,855, in accordance with certain plans and specifications. Before this contract was let, the plaintiff had been requested by the Kilby Company to bid upon certain portions of the work and materials, and had agreed with it to furnish these materials and perform-this work for $62,500. The defendant then made the agreement with Cooke whereby the latter agreed to construct the factory, and Cooke made an agreement with the plaintiff whereby the latter agreed to perform the work and furnish the materials assigned to it for the amount of its bid to the Kilby Company. Each of these contracts provided that the contractors should perform the work according to the same plans and specifications. Cooke agreed in his contract with the defendant that the latter might make any alterations, additions, or deductions in the work, that the amount of expense of such alterations should be added to or deducted from-: the contract price, that it should be estimated at the same rates at which the contract was undertaken, and that he would make no charge for extra work unless the same was ordered in writing by the defendant or by its engineers. The plaintiff, in its contract with Cooke, recited that the defendant had reserved in its contract the right to make alterations, additions, and deductions, and that Cooke-should also have the right to make corresponding alterations, additions,, or deductions in the work as he thought best; that the amount of the expenses of such alterations should be added to or deducted from the-
The plans and specifications required the walls of the beet sheds to be 9 feet high and 400 feet long; between the walls of each shed they disclosed a floor; that the bottom of the footings of the walls were to be 3 feet below this floor at its lower end; that the walls were to be constructed upon a horizontal plane, but that the floor was to be laid upon an inclined plane, so that the upper end would be about three feet higher than the lower end. Thus the walls would be nine feet high throughout, but at the lower end of them about six feet of the walls would be above the floor and three feet below the floor, while at the upper end there would be three feet of the walls above the floor and six feet below them. Before the plaintiff made its bid or contract, its president had a copy of these plans and specifications. He said to the general manager of the defendant: “Mr. Kilby, about how will we figure these beet shed walls? Mr. Kilby, how will we figure these; on the grade?” and Mr. Kilby said: “Yes, figure them on the grade. It would be foolishness putting concrete down into the ground to the depth of that, because where it gets to the upper end of the shed the grade raises about eight feet in a thousand, and the upper end of a shed
The court charged the jury that the plaintiff might recover the reasonable value of any work done or materials furnished at the request of the defendant that were not included in the contract between the plaintiff and Cooke, and it tried the case upon this theory. This ruling was repeatedly challenged by objections and exceptions to the admission of testimony and by an exception to the charge, and it is now assigned as error on the grounds that by the terms of the contract between the plaintiff and Cooke no recovery for extra work or materials was permissible unless they were ordered in writing, and because the measure of recovery was, by the terms of the agreement, not their reasonable value, but their value estimated at the rates specified for such work and materials in the contract. It is undoubtedly true that either of the parties to this contract might have enforced the provisions upon which the contention of counsel for the defendant is based. Either party might have required all orders for extra work to have been made in writing. Either party might have insisted that the amount of this work and materials should be estimated and compensated according to the rates specified in the contract. . But these provisions of the contract did not disqualify either of the parties to it or the Kilby Company from incurring other obligations or from making new contracts. The Kilby Company requested the plaintiff, without writing, to furnish at least 26 items of work and materials which it conceded were not included in the contract between the plaintiff and Cooke; it admitted its liability to pay the reasonable value of them, and it paid this value for 6 of them. The plaintiff .claims that there were 32 such items, and the dispute in this case presents the issue whether or not the additional 6 items were included in the contract between the plaintiff and Cooke or were of the character of the 26 items which both parties conceded to have been without the terms of the contract. The plaintiff furnished the labor and materials for the entire 32 items, and the defendant
The court instructed the jury that if they found from the evidence that the conversations between the president of the plaintiff and the general manager of the defendant, which have been recited, were had before the contracts were made, the plaintiff might recover the reasonable value of the work and materials which it furnished for paving the approaches to the sheds and for constructing the walls of the sheds in excess of the amount which it would have been required to furnish by the contracts and specifications as they were modified by these prior conversations. This portion of the charge of the court is assigned as error, and it is insisted that the evidence of prior parol negotiations between the plaintiff and the defendant was incompetent to affect the question whether or not the work and materials claimed for- extra paving and for increasing the height of the walls were within the contract between Cooke and the plaintiff. The rules of law by which this assignment must be tried are these: In the absence of fraud, accident, or mistake, all prior parol negotiations are, as a general rule, merged in the written contract of the parties. No representation, promise, or agreement made or opinion expressed in their previous conversations is admissible to contradict, explain, or modify the plain provisions and just interpretation of their written agreement. Wilson v. New United States Cattle-Ranch Co., 20 C. C. A. 245, 249, 73 Fed. 994, 999; Ins. Co. v. McMaster, 30 C. C. A. 532, 540, 87 Fed. 63, 71; Union Selling Co. v. Jones (C. C. A.) 128 Fed. 672, 675; Thompson v. Libby, 34 Minn. 374, 377, 26 N. W. 1. But where, in the application of a contract to its subject-matter, an ambiguity or uncertainty arises which cannot be removed by an examination of the agreement alone, parol evidence of the circumstances under which it was made and of statements made in the negotiations which preceded it may be admitted to resolve the ambiguity, and to prove the real intention of the parties. Stoops v. Smith, 100 Mass. 63, 66, 97 Am. Dec. 76, 1 Am. Rep. 85; Foster v. Woods, 16 Mass. 116, 117; Sargent v. Adams, 3 Gray, 72, 77, 63 Am. Dec. 718; Mumford v. Gething, 7 C. B. (N. S.) 305, 321; First
The facts and the law which condition the claim for the $2,243.15 for extra work and materials bestowed upon the walls of the sheds are of a different character. The plans, specifications, and contracts all required the walls of the beet sheds to be 9 feet in height and 400 feet long. They required their footings to be set 3 feet below the floors of the sheds at their lower ends. There was no ambiguity or uncertainty about the height or length of the walls or the amount of work and materials which would be required to construct them. The plans and specifications portrayed the walls standing upon a horizontal plane and the floors upon an inclined plane rising about eight feet in a thousand feet. Parol evidence was received that before the contracts were let the president of the plaintiff in a conversation with the general manager of the defendant called his attention to the fact that, if these walls were constructed according to the plans, their summits would be but
There are many other complaints of the trial, and many questions presented for consideration, but a careful examination of them discloses no other error in the trial of the case, and no other