Lefler Bros. v. C. W. Lane & Co.
83 S.E. 463
N.C.
1914
Check Treatment
*269 Hoke, J.

In construing written contracts it is a well recognized rule, approved in repeated decisions of our Court, that tbe intent of tbe parties as embodied in tbe entire instrument shall prevail, and that each and every part shall be given effect, if this can be done by fair and reasonable intendment. Gilbert v. Shingle Co., post, 286, citing, among other cases, Hendricks v. Furniture Co., 156 N. C., 569 ; Davis v. Frazier, 150 N. C., 449. The position referred to is very well stated in Hendricks’ case, as follows: “The court, in construing a contract, will examine the whole instrument with reference to its separate parts, to ascertain the intention of the parties, and will not construe as meaningless any part or phrase thereof when a meaning may thus be found by any reasonable construction.”

Applying the principle, we think it clear, from a perusal of this contract, that plaintiffs were not to be paid in any event for the entire amount covered by the boundary worked over, but only for such portions as were cleared by them according to the specifications of the contract. This is not only the more reasonable interpretation of the language employed bearing directly on the question, but to hold otherwise would be to ignore entirely the stipulation that the work was to be paid for “according to admeasurements made by the engineer in charge.” This was no doubt inserted for the reason that some parts of the land would be open and that the amount to be paid should be ascertained by survey and intelligent estimate, and, while the contract does not contain the provision that this estimate of the engineer shall be conclusive, giving his decision, as in some instances, the force and effect of an arbitration of the question, as in Webb v. Trustees, 143 N. C., 304; Perry v. Ins. Co., 137 N. C., 402; Wytheville v. R. R., 91 Va., 613; Brooke v. Milling Co., 78 S. C., 200, and that class of cases, at the same time, the engineer being the person selected by the parties to perform this service, his determination of the question should be considered as prima facie correct and controlling unless impeached for fraud or mistake. R. R. v. Scholes, 14 Ind. App., 534; Page on Contracts, sec. 1469; Elliott on Contracts, sec. 728; 9 Cyc., p. 617.

The clause then has, and was intended to have, some significance, and the construction which ignores it and which holds that the plaintiff is entitled to recover for the entire boundary and not for the amount actually cleared off, according to the specified terms of the contract, cannot be sustained. For the error indicated, defendant is entitled to a new trial, and it is so ordered.

New trial.