26 Mo. App. 660 | Mo. Ct. App. | 1887
delivered the opinion of the court.
The plaintiff was a sub-contractor under the defendants’ intestate for the grading of a part of the St.
Against the plaintiff ’s objections, a number of civil engineers were examined as experts, to establish the true meaning of the contract. One or more of them testified to the effect that the word, “filling,” would be •understood by engineers to mean an embankment made from “borrowed” dirt; that is, from dirt shoveled up from outside of the road bed, only. Others were of opinion that the sentence contemplated every filling or ■embankment, whether made from borrowed dirt, or from dirt hauled out from an excavation. The evidence thus drifted wholly away from the proper line, of expert testimony, touching the application of technical terms peculiar to a trade or business, and became a mere series of criticisms on the interpretation of language in common use. Such analyses of the phraseology found in a written agreement belonged exclusively to the court. The •so-called expert testimony, with its conflicts and disagreements, was altogether valueless, and should not have been considered for any purpose.
Looking at the nature of the contract and usages in universal acceptation with regard to such undertakings, as shown by the evidence, together 'with the compensation which the principal contractor was to receive
But, notwithstanding the tendency of these views in the plaintiff’s favor, we are of opinion that the judgment of the circuit court was for the right party, and
This was a clear case of interpretation by the parties themselves, shown by the acts on both sides, and agreed upon in thevery performance of the contract. In The St. Louis Gaslight Company v. The City of St. Louis (46 Mo. 128), our supreme court said of an interpretation so manifested: “If the court gives one differing from that understood by the parties, it, in effect, makes a new agreement, the very thing most to be avoided. If it leaves the parties to be governed by their understanding of their own language, it, in effect, enforces the contract as actually made. That they should be so permitted to construe their own agreement, áccords with every principle of reason and justice.” It is conclusively shown, by a stipulation in the record, as well as by the whole case made for the plaintiff, that he has been paid for all the work done under the contract, leaving out what he now claims for fillings constructed from material hauled out of the excavation, and that the payments corresponded with the estimates furnished by the engineer.
The contract provides: “That all measurements made by the chief engineer, or his assistants, shall be considered and accepted as correct, full and final; that the prices affixed shall be accepted as full consideration
With the concurrence of all the judges, the judgment is affirmed.