72 F. 227 | 5th Cir. | 1896
The plaintiff below, a railroad company, was on the 28th day of January, 1895, the owner of divers railway buildings, machinery, shops, tools, etc., in the city of Meridian. The defendant is the Meridian Waterworks Company. Those two corporations entered into a contract January 28, 1889, as follows: “* * * That, for and in consideration of the payments hereinafter agreed to be made by the said railway company to the waterworks company, the waterworks company agrees to supply and furnish the shops and tanks of the said railway company in Meridian, Miss., with full, adequate, and sufficient supply of good, pure water, not less than 60 pounds pressure, for all purposes for which water may be needed or used at said shops.” There is an additional provision as to the contract to convey a supply of water to the said shops for the use of two other railways. We omit it because it has no material bearing under the view we have of the issues. “Said waterworks company further agrees to construct and maintain in good order the necessary pipes and connection to said railroad company’s shops.” It will be noted that the necessary pipes are to reach the “company’s shops.” The contract was to run for three years. The railroad was to pay f1,200 per year for the use of an adequate and sufficient supply of water, at 60 pounds pressure. On the 26th of January, 1892, certain of the buildings, tanks, shops, machinery, etc., of the railroad company, were destroyed by ñre, and this suit is to recover damages. The plaintiff’s declaration, having set out in full the said contract, alleges that among the uses and needs which plaintiff had for said supply and pressure of water at said shops was for the purpose of putting out such fires as might occur in the buildings, etc., at said shops,- through,the instrumentality of hose and plugs attached to defendant’s pipes; and to that end the plaintiff kept at the said shops divers hose, etc., with nozzles and with proper connections with defendant’s pipes, which said hose, etc., plaintiff kept constantly at hand, and ready to throw, out of said pipes, under the pressure specified and contracted for, on any fires that might take place or begin in and about said buildings, shops, etc., streams of water, and thus extinguish such fires, and prevent the destruction or injury of plaintiff’s said property; and plaintiff avers that the said 60 pounds pressure above referred to and specified in said contract was contracted for, and intended for, and understood by said defendant to be for, the purpose of securing such stream of water, through such hose, etc., from defendant’s pipes at the shop,
Defendant filed a demurrer, raising the question as to its liability, under the contract, for losses by fire, which was overruled, and plaintiff, later on, filed an amended declaration. Then defendant interposed the general issue. On the trial below, both sides consented to waive a bill of exceptions setting out plaintiff’s evidence in supporRof its allegations. So the issue before us may be considered as if the court below had sustained a general demurrer to the sufficiency of plaintiff’s declaration to show a cause of action, and a decree therein had come up for review in this court. On the trial of such a demurrer, the court below would have had to take, as we shall have to take, as true, the allegations of the plaintiff’s declaration. The essential allegations therein are, substantially, that plaintiff was the owner of, and was actively using and operating, certain railway buildings, shops, machinery, etc., at Meridian, and needing a supply of water, among other things, for the purpose of protecting its said property from fire, and that there being no other available source from whence to obtain such quantity of water as might be necessary to extinguish fires, as the defendant well knew; that said defendant then owned and operated a system of waterworks, for hire and profit, and plaintiff contracted for a full, adequate, and sufficient supply of good, pure water, not less than 60 pounds pressure, for all purposes for which water may be needed or used at said shops; that, as a part of said agreement, defendant laid its pipes to plaintiff’s said premises, and attached thereto fire hydrants, to enable plaintiff to use said water as a protection against fire; and that, to that end, plaintiff kept hose and nozzles on said premises; and that the supply of water at 60 pounds pressure was contracted for, and intended to be used for the purpose of, extinguishing any fire that might break out in said premises; and that, within the terms of the agreement and understanding, a fire did break out, which the plaintiff would have been able to extinguish had the said adequate supply of water; contracted for, been furnished to the plaintiff, and had the contract for pressure at not less than 60 pounds been maintained; and that the loss sustained, by plaintiff, in consequence of such fire, was caused solely by the failure of the defendant to comply with the terms of his said contract; that defendant, in agreeing to furnish “a full, adequate, and sufficient supply of good water” fo,r the consideration of $1,200 per annum, at 60 pounds pressure, knew that one of the essential purposes ffor which plaintiff desired to have such adequate supply of water was that the plaintiff might extinguish fires endangering said shops, etc.
As the case comes to us, that obligation of the contract with reference to furnishing water at not less than 60 pounds pressure' was breached. Certainly, the plaintiff, whatever may have been the cause of its failure to extinguish said fire, did not have, at the time of the fire, such an adequate supply of water as that pressure would ha ve given to it. Under such a state of case as might have been shown by legal evidence, admissible under the pleadings, it may be that the plaintiff was entitled to have that amount of pressure in the company’s fire hydrants, to which plaintiff’s hose were attached at the
By way of illustrating such evidence as might have been admissible under the allegations of the declaration, we think testimony would have been admissible, and of legal value, to show that the defendant corporation might have frequently, in its sales of water, been supplying the city generally or other shops or factory buildings with water for fire purposes, and that the defendant had knowledge that, from time to time, plaintiff or other manufacturing-shops had been using the fire hydrants set up by defendant at such shops, for the extinguishment of fires. Such facts, with other admissible evidence, might have been conclusive, or, at least, very ■persuasive, to show that the GO pounds of pressure was contracted .for because plaintiff, to the knowledge of defendant, wanted and relied on such a pressure for fire purposes. If the terms of the contract are ambiguous or indefinite, and hence of doubtful character, the particular construction by the parties themselves is entitled to great, if not controlling, influence. Topliff v. Topliff, 122 U. S. 121, 7 Sup. Ct. 1057. It is a familiar rule that, in the construction of contracts, — and a rule too, which does not contemplate the allowance of additions thereto, or the interposition between the ¡contracting parties of new purposes or obligations not found in .the language of the contract, — courts “may look not only to the language employed, but to the subject-matter and the surrounding circumstances, and avail themselves of the same light which the ; parties possessed when the contract was made.” Merriam v. U. S., 107 U. S. 437, 2 Sup. Ct. 536; Lowber v. Bangs, 2 Wall. 738; U. S. v. Peck, 102 U. S. 64; U. S. v. Gibbons, 109 U. S. 200, 3 Sup. Ct. 117; Railway Co. v. Jurey, 4 Sup. Ct. 566. In Atkinson v. Sinnott, 67 Miss. 502, 7 South. 289 (see cases cited), the supreme court held “that !it is competent to look to the surroundings of the parties,'not to con.tradict, but to interpret, the meaning of the words they have em- ! ployed.”
It is not contended that warranties common to aninsurancecontract ¡ against fire losses could be set up or maintained under plaintiff’s ■ declaration. We do not know that $1,200 a year would be a fair or i an excessively high charge for supplying plaintiff’s shops with 1 sufficient water for other uses than for fire purposes; nor are we ad-1 vised as to how far $1,200 would go to secure a reasonable amount of (insurance on such valuable property as was destroyed by the fire. The warranties in this contract do not suggest in favor of the plain- ■ tiff such absolute indemnity as might be contracted for in an insur;ance risk; yet an inquiry into such matters might have disclosed 1 to us “the same light the parties possessed when the contract was made.” The breach of the contract was not, as it would be in fire ’insurance contracts, in the fact that a fire destroyed the railway company’s property; for if water with a much greater pressure had been thrown, through ample piping, by the most skillful firemen, it might not, or possibly could not,- have been arrested. But the breach upon which the pleadings herein show this- action to be
The plaintiff’s buildings were destroyed by fire. Under the real facts in the case, the proximate cause of plaintiff’s loss may have been the said fire, or the proximate cause may have inhered in, and sprung out of, defendant’s failure to furnish water at 60 pounds pressure. On the "other hand, the real facts in the case might have disclosed conditions under which defendant would not be chargeable for plaintiff’s loss, even though the waterworks company had failed, in plaintiff’s emergency, to supply any water at all. But the plaintiff had contracted for an adequate supply of water at such pressure, and, when the emergency came, the railway company was entitled, under a reasonable condition of things, to the use of water at that pressure, to aid its servants, to that extent, to extinguish the fire. Under the pleadings, jffaintiff’s evidence, not objectionable under the well-established rules as to the admissibility of evidence, applicable under such a siate of case, might have authorized a recovery of damage's. See Greenl. Ev. § 230; Tufts v. Greenewald, 66 Miss. 360, 6 South. 156; Dixon v. Cook, 47 Miss. 222. Plaintiff’s declara lion alleges that the proximate cause of its damages was not the fire, but was in the fact of defendant’s failure; to furnish water at 60 pounds pressure;. If such be the case, plaintiff’s damages were not remote or too consequential to be susiained by the law applicable to the facts. Hadley v. Baxendale, 9 Exch. 341; Suth. Dam. p. 80, cases cited; Hammer v. Schoenfelder, 47 Wis. 455, 2 N. W. 1129; 5 Am. & Eng. Enc. Law, pp. 5, 6, 13.
Under the rule in Hadley v. Baxendale, 9 Exch. 341, and quoted with approval by a number of federal and state courts, the court said:
"When two parties have made a contract which one of them has broken, the damages which the other ought to recover, in respect of such breath of contract, should be either such as may fairly and substantially be considered as arising naturally — i. e. is according to the usual course of things— from such a breach of contract itself, or such as may be supposed to have been in contemplation of both parties, at the time they made the contract. #as the probable result of it.”
Fogg v. Blair, 139 U. S. 122, 11 Sup. Ct. 476 ; 1 Sedg. Dam. pp. 66, 77; 5 Am, & Eng. Enc. Law, pp. 5, 33, 15.
It follows from what we have said that there was error in excluding the plaintiff’s testimony, and directing a verdict for the defendant in the court below. Therefore, the judgment of the circuit court must be reversed, and the cause remanded, with directions to award a new trial and to take such proceedings as may be in accordance with this opinion.