Manistee Iron Works Co. v. Shores Lumber Co.

92 Wis. 21 | Wis. | 1896

Pinney, J.

1. At the time the contract was made the barge was lying at Chicago in a leaky condition and had considerable water in its hold covered with thin ice. The work contracted for was to be done at Sheboygan, to which place, it is conceded, the defendant was to take the barge; and, in the absence of any special agreement, it may be assumed that it was the duty of the defendant to deliver it at the latter place within a reasonable time, for that purpose. There was evidence tending to show that' the parties made a subsequent agreement by parol, as they might do, as to the time of delivery. Bannon v. C. Aultman & Co. 80 Wis. 307. The plaintiff contends that it was to be delivered within a day or two after January 1st, and the defendant that it was to be delivered any time within two weeks thereafter, and there was evidence justifying the submission of the question of time of delivery, in this view, to the jury. But the attention of the court does not appear to have been called to the question, and it instructed the jury that “ it was the duty of the defendant to deliver the barge at Sheboygan within a reasonable time and in a suitable condition, all things considered, for plaintiff to prosecute its work without unnecessary delay.” The plaintiff’s agent saw the barge at Chicago when the contract was made, and knew its situation and condition, and it appears that at that time the making of proper measurements essential to the projected work was very difficult, and in fact impracticable. The barge reached Sheboygan about the 9th of January; and the evidence tended to show that it was then pretty well filled with ice and water, its leakage was much increased, and that there was sixteen inches or more of ice above the crank shaft; that the principal measurements could not be made until it was put in the dry dock, and the ice and water removed; and that, for various reasons, it did hot get into the dry dock, where considerable work was to be done on it in building over and repairing the hull and other portions, until about thirty-five days after its arrival. It appeared that the defendant, on the same day, and before it made the contract with the plaintiff, made a contract for rebuilding in part and repairing the hull and other parts of the barge, with Rieboldt, Wolter & Co., of Sheboygan, ship eai-penters and builders, who had the only dry dock at that place, for $4,200; and that the plaintiff’s agent, when he made the contract in suit, knew of that contract, and, by one of its provisions, Rieboldt, Wolter & Co. Avere to dry dock the barge; and the contract ill suit provided that the plaintiff was “ to have all machinery in boat, so that carpenters can complete cabins by April T, 1893.”

What is implied in an express contract is as much a part of it as what is expressed. It is a well-known rule of law that every contract must be construed as if those terms which the law will imply were expressly introduced into it (Whincup v. Hughes, L. R. 6 C. P. 78, 84; Donahoe v. Kettell, 1 Cliff. 144; U. S. v. Babbit, 1 Black, 61); that, where a contract is so framed that it binds the party contracting to do the act, it will imply a correlative obligation on the party to do what is necessary on his part to enable the party so contracting to fulfill his part of the contract (Hudson Canal Co. v. Pennsylvania Coal Co. 8 Wall. 288; Churchward v. Reg. L. R. 1 Q. B. 195; Currier v. B. & M. Railroad, 34 N. H. 498).

The defendant was bound, as we have seen, to deliver the barge at Sheboygan, so that the work contracted for by the plaintiff could be there performed; and we think it is faMy to be implied that the barge should be delivered there in a reasonably suitable condition to enable the plaintiff to perform its contract, and that the charge of the circuit judge in this respect was correct. If the barge had been sunk in the river at Chicago at the time the contract was made, or had sunk in the harbor at Sheboygan after its arrival, it could not, we think, be maintained that the plaintiff would be bound to raise it, in either case, and put it in such a situation that the performance of its contract would have been practicable; and the like conclusion follows from the actual circumstances .of the present case. The plaintiff ought not to be charged, as it was by the judgment, with the consequences of delay in performing the contract for which the defendant was responsible. In Churchward v. Reg., supra, Cockburn, C. J., said that, “ in all these instances where a contract is silent, the court or jury who are called upon to imply an obligation on the other side which does not appear in the terms of the contract must take great care that they do not make the contract speak where it was intentionally silent, and, above all, that they do not make it speak entirely contrary to what, as may be gathered from the whole terms and tenor of the contract, was the intention.of the parties. This I take to be a sound and safe rule of construction with regard to implied covenants and agreements, which are not expressed in the contract.” It was provided in the contract that the work was to be done at Sheboygan, and it was conceded that it was the duty of the defendant to take the barge to that place, although the contract was entirely silent on that point; and we consider the implication is equally clear that it was the duty of the defendant to deliver or place it there in a reasonably suitable situation or condition to enable the plaintiff to perform its contract. The sixth question should have been framed, in respect to the time of the delivery of the barge, as above indicated, and the seventh, as framed, was substantially correct. It should be left to the jury, in substance, to find how long the plaintiff was delayed by reason of the failure of the defendant to deliver the barge at Sheboygan in a reasonably proper condition to enable it to perform its contract. The questions above indicated are material, and there was evidence which required them to go to the jury, although1 much of it was erroneously excluded. - The court erred in setting aside the fifth and seventh findings, and by treating them as immaterial, and thus allowing the defendant damages for the entire delay of thirty-one days in performing the plaintiff’s contract.

2. The jury found in the negative upon the question whether the putting in of the “valve-stem guide,” which broke soon after the barge left Sheboygan, was a part of the ■ plaintiff’s • contract; but the court struck out this finding and substituted an affirmative one in its place. The barge had a low-pressure engine, and the defendant wanted it made both high and low pressure,— compounded; and the work of doing this required the construction of the high-pressure parts, and attaching them above- and to the low-pressure machinery already in the barge. It would seem from the evidence that the valve-stem guide in question was a part of the low-pressure engine, and that all the work in compounding the engine was above it. The contract does not call for the construction of a valve-stem guide, unless it comes within the terms of “ necessary connections to work high-pressure valves.” The valve-stem guide that broke belonged to and had been used in the low-pressure engine, and it became also a necessary device in working the new or high-pressure engine; but whether it was a necesswry connection to work the high-pressure engine which the contract required should be replaced by a new one by the plaintiff is not so entirely clear as to make the question one of law for the court. The valve-stem guide appears to be near the bottom of the old or low-pressure engine, and the valve-stem rod of the new high-pressure engine is, in fact, connected with it by a block or link near the connection of the old with the new engine, and it is claimed that this link or block was the only connection required of them by the contract. "While the valve-stem guide was essential to the use of the old engine by itself, and when the new engine was built and the valve rods thus connected it became a device for the operation of the new engine, still it does not therefore follow that it was a “ necessary connection,” which the plaintiff was required by the contract to.make new. The evidence is not entirely clear upon the subject, and the meaning of the contract in this respect is, under these circumstances, a question for the jury, depending upon the evidence of machinists and experts. The court therefore erred in thus changing the verdict. Sheehy v. Duffy, 89 Wis. 6; Menominee River S. & D. Co. v. M. & N. R. Co; 91 Wis. 447. The delay of four days of the boat, crew, etc., charged against the plaintiff, at the rate of $100 per day, was occasioned by the breaking of the old valve-stem guide, for which it does not appear that the plaintiff was in any way responsible. This erroneous charge of $400 results from the ruling of court that, as a matter of law, the plaintiff was bound by the contract to have constructed a new valve-stem guide.

3. The stipulation in the contract for the payment of $50 per day for each day the use of' the boat was delayed by failure of the plaintiff to finish its work, denominated a “fine” in a subsequent provision of the contract, is, we think, a stipulation for the payment of liquidated damages, and is not a penalty, under which the fair rental value per diem of the barge without its crew would become a matter of proof. We think the force of the word “fine” is overborne by the general purport of the contract and its subject-matter. The evidence shows that the use of the barge per diem during the season of navigation was not disproportionate-to the sum agreed on, but was about $50 per day; and, although called a “ fine,” the parties seem to have agreed upon this compensation for each day’s delay, to obviate the necessity or difficulty of proof. The sum is really named as compensation for each day’s failure of the plaintiff to complete an entire job, and the case falls within the rule stated in Yenner v. Hammond, 36 Wis. 277; Lyman v. Bab-cock, 40 Wis. 517; Curtis v. Brewer, 17 Pick. 513; Hall v. Crowley, 5 Allen, 304; Young v. White, 5 Watts, 460.

For these reasons the judgment of the circuit court is erroneous.

By the Cov/rt.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.