19 Or. 9 | Or. | 1889
Lead Opinion
delivered the opinion of the court.
The object of this suit is to recover damages against the defendants for the alleged violation of the conditions of a certain bond executed by the defendants to the plaintiff. It appears from the complaint that on the eleventh
“This agreement, made and entered into by and between C. P. Church and R. Saunders, as partners under the firm name of Saunders & Church, parties of the first part, and the committee on fire and water of the town of Pendleton, composed of W. F. Matlock, E. Reith and S. Rothchild, parties of the second part — witnesseth:
“That the parties of the first part, for and in consideration of the acceptance by the town of Pendleton of the water-works system, constructed for said town by the parties of the first part, in its present condition, and the payment by the town of Pendleton to the said first parties of the sum of the water bonds of the town of Pendleton, in the denominations of one thousand dollars each, and numbered 22, 23, 24, 25, 26, 27, 28, and 29, and of the sum of one hundred and ninety-two and f orty-eight one-hundredths dollars, by warrant drawn on the town treasury, that being the balance of the price agreed upon by the first and second parties as due to said first parties from said second parties upon the full and complete completion of said water-works system, the parties of the first part agree to and with said second parties that within ninety days from the date of the signing of the contract the reservoir of the water-works system of the town of Pendleton shall contain at least 500,000 gallons of water, or as much as can be put in the reservoir by pumping, and that said reservoir, when containing 500,000 gallons of water or as near thereto as possible, shall not lose from evaporation and filtration more than one and one-half inches of water, vertical measure, during each (Twenty-four 'hours, and that if said reservoir, when containing said amount of water, at the expiration of said ninety days,*12 shall lose more than one- and one-half inches of water by filtration and evaporation during each twenty-four hours, then that the said first parties shall, at their own cost and expense, within twenty days thereafter, make said reservoir water-tight by walling up the north, east and west walls of the same with hard-burned brick laid in cement mortar, and shall plaster the same with cement and black sharp sand, mixed in the customary proportions for cementing cisterns, on the inside of the walls of said reservoir to a depth of at least three-eighths of an inch.
“That the parties of the first part make, sign, execute and deliver to the town of Pendleton a good and sufficient bond in the penal sum of $4; 000, with two or more sureties, to be approved by the common council, conditioned for the faithful performance of their part of the terms of this agreement.
“That the parties of the second part, for and in consideration of the covenants and agreements of the first parties herein mentioned and by them to be kept and performed, hereby agree to and with said parties, not as individuals, but for and on behalf of the town of Pendleton, to accept for said town, subject to the conditions and covenants mentioned in this agreement, the water-works system constructed for the town of Pendleton by the first parties in the condition the same is now in, and to pay and deliver upon the filing of this contract, duly signed and executed by the parties' thereto, accompanied with the bond of the first parties, heretofore mentioned, with the recorder of the town of Pendleton and the approval of the same by the common council, water bonds of the town of Pendleton, in' denominations of one thousand dollars each, and num bered 22, 23, 24, 25, 26, 27, 28, and 29, also a warrant of said town, drawn on the town treasurer, for the sum of one hundred and ninety-two and forty-eight one-hundredths dollars.
“And it is further understood and agreed, by and between the parties to this agreement, that during the time mentioned in this agreement for the completion of*13 said reservoir, that the town of Pendleton will pump water into said reservoir to the full capacity of its pumps (except what water shall be needed for consumption in said town) whenever the first parties may desire to make a test of said reservoir, not exceeding once each week; and that the said first parties shall have the right during said time to bleed the reservoir as often as they may deem it necessary for the repairing of the same; and it is further understood and agreed by and between the parties to this agreement that W. F. Matlock, E. Keith, and S. Rothchild, parties of the second part, in the signing and execution of this agreement, assume no personal responsibility, and are not to be held in any way personally liable thereon, but that they sign and execute the same for and on behalf of the town of Pendleton.
“In witness whereof, the parties have hereunto set their hands and seals this twenty-first day of J une, 1887.
“1. Saunders & Church, [l. s.]
“4. W. F. Matlock. [l. s.]
“2. E. Keith. [l. s.]
“3. S. Rothchild. [l. s.]
“In the presence of:
“John J. Balleray.
“Thos. Fitzgerald.
“As to signatures 1, 2, and 3, 4.”
That the foregoing agreement is the agreement or contract between Saunders and Church and the town of Pendleton mentioned in the bond hereinafter set forth;* that on the seventeenth day of June, 1887, the defendants duly made and executed to the plaintiff their certain bond in the words and figures following, to wit:
“Know all men by these presents: That we, C. P. Church and R. Saunders, Zoeth Houser, Lee Moorhouse, C. B. Wáde, and W. T. Chalk are held and firmly bound unto the town of Pendleton in the just and full sum of four thousand dollars .($4,000), for the payment of which sum to the said town of Pendleton, we, and each of us, do by*14 these presents, bind ourselves, our heirs, executors and administrators, jointly and severally, firmly by these presents. Signed with our hands and sealed with our seals this seventeenth day of June, A.D. 1887.
“The condition of the above obligation is such that, whereas, the above bounden C. P. Church and E. Saunders are about to enter into a contract with the town of Pendle-ton, supplementary to the contracts now existing between said C. P. Church and E. Saunders, on one part, and the said town of Pendleton on the other, providing for the construction of the system of water-works in the said town, which contract bears date, or is to bear date, the twenty-first day of June, A.D. 1887, and which contract provides for the doing of certain work on the reservoir belonging to said water system, in case the same shall be necessary to make said reservoir water-tight; now, therefore, if said C. P. Church and E. Saunders shall strictly conform to and perform all their covenants contained in said contract, and abide by and perform all the cove nants and conditions therein contained on their part, then this obligation to be and become void, otherwise to be and remain in full force and virtue. Signed and sealed the day and year above written.
“Charles P. Church. [l.s.]
“E. Saunders. [l.s.]
“Zo. Houser. [l.s.]
‘ ‘Lee Moorhouse. [l. s. ].
“C. B. Wade. [l.s.]
“W. T. Chale. [l.s.]
“ Signed, sealed and delivered in presence of .
“John J. Balleray.
“W. E. Crews.
“G-. W. Pittock.
“P. E. Gerould.”
That said bond was, on the twenty-third of June, 1887, approved by the common council of the town of Pendleton; that at said time there remained due the contractors from
To this complaint defendants filed a general demurrer, and the demurrer having been overruled, the defendants answered. By the answer defendants admit the contract made by Saunders and Church with plaintiffs, dated November 11, 1886, and that Saunders and Church proceeded under the same to construct a system of waterworks for plaintiff, and gave notice to plaintiff that they had completed the same. They admit that at the time Saunders and Church gave notice to plaintiff of the completion of said water-works they had been paid the sum of $22,200, and there was still due on the said contract the sum of $3,115, and the further sum of $5,567.48 for extra work and for material. They admit that on the seventeenth day of June the defendants executed the bond set out in plaintiff’s complaint, and that on the execution of said bond the plaintiff paid to Saunders and Church the
Defendants alleged, in their answer, the following new matter : That at the time said Saunders and Church gave such notice and made such demand (that is, gave notice that they had completed their contract and demanded the balance then due them), they had completed said system of water-works including said reservoir according to the said contract and said plans and specifications therefor ; that plaintiff being unprepared at the time of the completion of said work to make a test thereof, and being unwilling to accept the same without such test, and refusing to pay said Saunders and Church the balance of the contract price for said work, namely, the sum of S3,115, besides the sum of |5,567.48 due said Saunders and Church for extra work and materials, and said Saunders and Church being about to sue the plaintiff for said sums due them, the plaintiff and defendant, to avoid litigation, entered into the contract set up in plaintiff’s complaint; that after the making of the contract mentioned in plaintiff’s complaint, dated November 11,1886, by and between Saunders and Church and the plaintiff herein, the said Saunders and Church did build and construct for plaintiff the said system of water-works in the town of Pendleton, including the reservoir belonging to said system, in strict accordance with the plans and specifications which formed a part of said contract, except where the same were changed by the direction and at the request of plaintiff, and did build and construct said reservoir so that the same had a capacity of and was capable of holding more than 500,000 gallons of water, and was when holding such quantity of water and at all times water-tight, and said Saunders and Church thereupon demanded of plaintiff the balance of the contract price of said system of water-works, which then amounted to §3,115, and the price of extra work done thereon and material furnished therefor, which amounted to the sum of $5,567.48; that
The reply put in issue the new matter contained in the answer. A trial before a jury resulted in a verdict and judgment for the plaintiff in the sum of $2,250, from which judgment this appeal is taken. The notice of appeal contains twenty-six assignments of error, but those only which were specially insisted upon at the argument here will be noticed.
1. The liability of the defendants in this action must be measured by the contract which Saunders and Church made with the plaintiff dated J une 21, 1887, and the bond made pursuant thereto, signed by all of the defendants,
2. But there is one charge given by the court to which an exception was taken, which is not covered by what has been said; which charge is as follows : “If you find that the supply pipe of the reservoir did allow water to escape through its gates, and that such escape was due to the failure of the gates to shut by reason of gravel getting into the pipe, and if you further find that such gravel got into the pipe from the reservoir after the twenty-first day of June, 1887, and before the expiration of ninety days, by reason of its imperfect construction, and in its ordinary use, I instruct you that such loss was within the scope of the undertaking of the contractors, and they are to be held responsible therefor. I charge you that filtration, in the sense used in these instructions, means leakage from the reservoir from any cause owing to its defective construction, and its incapacity by reason thereof to hold water.”
Appellants’ counsel contend that the word filtration used in the contract is there used in its ordinary sense, and that these instructions are erroneous because they assume that it was used in a different sense. The ordinary rule undoubtedly is that language used in a contract is to be understood and held to bp used in its ordinary and usual sense and signification; but within that rule this word would have no signification whatever. The meaning ascribed to it by lexicographers is “the act or process of filtering; the mechanical separation of a liquid from the undissolved particles floating in it”; and the process of filtering is defined “to purify or defecate, as liquor, by causing it to pass through a filter, or porous substance that retains feculent matter.” In the sense in which the word is used in the contract it plainly imports a method of losing water from the reservoir. The words are: “Shall not lose from evaporation and filtration more than one and one-half inches,” etc. To claim that the word in this connection can have or was designed to have its ordinary signfication, is an absurdity.
Looking at the subject matter of this contract, its object, the situation and surroundings of the parties, and particularly the connection in which the word occurs therein, we are not prepared to say the court misinterpreted it to the jury. The only question that does not seem clear to us is whether or not it is admissible in such case to employ interpretation at all; but looking at the whole subject matter in the light in which the parties evidently viewed it when they made the contract, we think that we may properly look for the meaning of the words they used in the context and in the surroundings and situation of the
3. The defendants took some exceptions to the introduction of evidence, which requires notice. R. A. Haber-sham, who has been a practical civil engineer for thirty years, was called by the plaintiff and testified without objection, in substance; “I was at the reservoir of the town of Pendleton yesterday. I have the elevation of the hill on which it is situated. I found the top of the reservoir wall about one hundred and forty feet above the pumping house. I took it with a barometer. That is a recognized mode of taking elevations. I have had experience in blasting and digging out excavations in the ground and in soil of the same character as that out of which the reservoir was digged. The effect of blasting is to shake up and loosen such ground, and might have a tendency to give rise to fissures and appertures in the surrounding earth. I have made a test to determine as to whether rock of the character as that out of which the reservoir was digged would resist leakage of water. I tested some of the same rock by putting it in water for twenty-four hours. When I took it out some of the pebbles still stuck together, but generally it had fallen apart and showed no evidence of having anything in the nature of cement in it. The matrix in which the pebbles were enveloped is mostly volcanic ash, with very little cohesiveness about it. I have had experience in building walls- to resist water. If the material into which the reservoir is excavated is solid, whether it be earth or hard pan, it would not require any
The witness further testified under exception: “The hole in which the reservoir is built, not being water-tight, the reservoir would leak down to the bottom of this crack, and if the clay support were to continue alternately freezing and thawing, it would break off in the neighborhood of that soft place. The tendency would be to yield at all parts of the wall within the reach of this breaking up. ” This witness also, under exception, gave his opinion to the jury on several similar points in the controversy.
Frank Duprat, Felix Eoumagoux, and E. Paschal, who were stone-masons, and who constructed the walls in the reservoir for the city, to make the same water-tight, were each asked various questions tending to elicit their opinions as to the kind of walls necessary to be reasonably safe and durable, what would be the effect upon the wall of water running behind it and freezing, etc.; and to each and all of these questions the defendants’ counsel objected, for the reason that the same was irrelevant and immaterial, which objections being severally overruled, exceptions
If these were not proper subjects for expert evidence, or if tbe several witnesses offered did not possess tbe requisite knowledge to enable them to give an opinion, tbe evidence offered should have been excluded on tbe ground of its incompetency; but counsel did not make that objection. They relied upon its immateriality and irrelevancy, and insisted on no other objections.
Under tbe plaintiff’s view of this case, this evidence was both relevant and material. It tended to show tbe nature and character of tbe wall tbe plaintiff was required' to construct in order to make tbe reservoir reasonably durable and water-tight. It was material and relevant as tending to show tbe extent of tbe labor and material which were necessary to construct such wall, and which would, to some extent^ aid. tbe jury in determining tbe amount tbe plaintiff was required to expend in its construction. But allowing tbe defendants tbe benefit of tbe other objection, — tbat such evidence was incompetent, — still tbe exceptions could not be sustained.
Section 706 of Hill’s Code provides: “In conformity with tbe preceding provisions, evidence may be given on tbe trial of tbe following facts:
* * * * * » * * a *
“9. Tbe opinion of a witness respecting tbe identity or bandwriting of a person when be has knowledge of tbe person or bandwriting; bis opinion on a question of science, art, or trade, when be is skilled therein.” * *
This statute merely indicates tbe general rule admitting expert testimony, and I think all tbe testimony to which exceptions were taken, on tbe subject indicated, were of that nature. Each of tbe witnesses appeared to be skilled in tbe particular science, art, or trade, to which tbe questions related. “An expert is one instructed by experience, and to become one requires a course of previous habit and
4. A point was made during the argument here, that the writings sued on were without consideration, and the same question was made prominent during the trial in the court below; but I am unable to discover any force in the appellant’s contention on this point. The writings declared on are under seal, and seal always imports a consideration; but that is not all. The mutual covenants and agreements of the parties are a sufficient consideration to support such mutual promises.
The judgment of the lower court is affirmed.
Rehearing
[ upon Re-hearing.
delivered the opinion of the court.
This case was argued, submitted and decided at the last term of this court sitting at the town of Pendleton. Some doubt prevailed, however, in the minds of some of the members of the court as to the correctness of the conclusions arrived at, consequently it was concluded to grant a re-hearing. The facts of the case are pretty fully set out in the opinion rendered at the former hearing; but as it will enable me more clearly to express my views in regard to it, I shall briefly advert to them.
“The condition of the above obligation is such, that, whereas, the above bounden C. P. Church and E. Saunders are about to enter into a contract with the town of Pendleton, supplementary to the contract now existing between said C. P. Church and E. Saunders, on one part, and the said town of Pendleton on the other, providing for the construction of the system of water-works in said town, which contract bears, or is to bear, date the twenty-first day of June, A.D. 1887, and which contract provides for the doing of certain work on the reservoir belonging to said water system, in case the same shall be necessary to make said reservoir water-tight. Now, therefore, if said C. P. Church and E. Saunders shall strictly conform to and perform all their covenants contained in said contract, etc., then this obligation to be and become void,” etc.
The agreement referred to in .the bond contained the following stipulations:
“That the parties of the first part, for and in consideration of the acceptance by the town of Pendleton of the water-works system constructed for said town, by the parties of the first part, in its present condition, and the payment by the town of Pendleton to said parties of the sum of water bonds by the town of Pendleton, in the denomination of one thousand dollars each, and numbered 22, 23, 24, 25, 26, 27, 28, and 29, and of the sum of one hundred and ninety-two and 48-100 dollars, by warrant drawn on the town treasurer, that being the balance of price agreed upon by the first and second parties as due to said first parties from said second parties upon the full and complete completion of said water-works system, the parties of the first part agree to and with said second parties that within ninety days from the date of the signing of this contract the reservoir of the water-works system of*28 the town of Pendleton shall contain at least five hundred thousand gallons of water, or so much as can be put into the reservoir by pumping; and that said reservoir, when containing said 500,000 gallons of water or as near thereto as possible, shall not lose from evaporation and filtration more than one and one-half inches of water, vertical measure, during each twenty-four hours, and that if said reservoir, when containing said amount of water, at the expiration of said period of ninety days shall lose more than one and one-half inches of water, by filtration and evaporation, during each twenty-four hours, then that the said first parties shall, at their own cost and expense, within twenty days thereafter, make said reservoir watertight by walling up the north, east and west walls of the same with hard-burned brick, laid in cement mortar, and shall plaster the same with cement and black, sharp sand mixed in the customary proportions for cementing cisterns on the inside of the walls of said reservoir to a depth of at least § of an inch.
“And it is further understood and agreed by and between the parties to this agreement that during the time mentioned in this agreement for the completion of said reservoir, that the town of Pendleton will pump water into said reservoir to the full capacity of its pumps (except what water shall be needed for consumption in said town) whenever the first parties may desire to make a test of said reservoir, not exceeding once each week, and that the said first parties shall have the right during said time to bleed the reservoir as often as they may deem it necessary for the repairing of the same.”
These provisions of the said bond and contract indicate very clearly the status of the affair between the parties at the time of their execution.
The appellants had contracted with the respondent to construct and put in for the latter a system of water-works, including a reservoir, which reservoir was to be built according to certain specifications, was to have the capacity of holding 500,000 gallons of water and be water
The parties understood, no doubt, that it might be necessary to wall up the said three sides of the reservoir and plaster the walls, as provided in the supplemental contract, in order to render it water-tight, and the time and opportunities agreed to be given to the appellants to test and examine it were for the purpose of enabling them to ascertain with certainty whether or not it was necessary to do that. The important consideration in the matter was to secure a water-tight reservoir; the appellants had agreed in the original contract to construct such an one, and they were not relieved from the obligation by the supplemental contract. The object and purpose of walling up the sides and doing the plastering as therein provided were to secure that result, which the parties evidently supposed would accomplish it beyond a peradventure. The language of the instrument is that the said appellants shall “make said reservoir water-tight by walling up,” etc. The respondent agreed, it is true, that it would pump water into the reservoir to the full capacity of its pumps (“except what water shall be needed for consumption in said town”) whenever the first parties may desire to make a test of said reservoir, not exceeding once each week, and that said first parties should have the right during said time “tobleed the reservoir” as often as they might deem it necessary. This imposed an obligation upon the
The appellants’ counsel insist that if a contract is not ambiguous or uncertain it is the duty of the court to take the contract as it finds it, and enforce the stipulations which the parties themselves have made, as they are only bound to the extent of those stipulations. If the counsel mean by this that the courts in their construction of contracts are bound by the literal words contained therein, taken according to their strict signification, they are very wide of the mark. If the intention of the parties to the contract is manifest, of course ‘ ‘ the court should enforce the stipulation which they themselves have made.” A knowledge of such intention cannot always, however, be gained from the abstract meaning of the language which the parties employ in their contracts, but must be ascer
The case in hand furnishes a good illustration of the principle suggested. The appellants in the original contract with the respondent undertook to build and construct a reservoir which should be water-tight. The terms of the undertaking were general, yet an implied obligation was thereby created to the effect that the appellants would do whatever might be necessary to make such water-tight reservoir. If, therefore, it were necessary, in order to prevent the reservoir from leaking, to. wall up the four sides thereof, and plaster the entire inside “with cement and black sharp sand,” they were just as much obligated to do it under the general terms of the contract as they would have been had it been definitely specified therein. And I think the language of the second contract, read by the light of surrounding circumstances, was sufficiently broad to require the appellants, in case it were necessary to render the reservoir water-tight, to construct permanent and durable walls on the said three sides of the reser-. voir in such a manner as to resist the force of the elements common to the locality and climate where they are situated, and to which they are liable to be subjected. I do'not agree with the view maintained by the learned counsel for appellants, that the construction of the wails without regard to their permanency or durability, although it might answer the letter of the contract, would be sufficient to absolve the appellants from their obligations in the premises. The performance of the work specified in the contract was to effectuate an object. It was intended to secure to the town of Pendleton a system of waterworks that would endure as long as improvements of that character usually continue. It was intended to have stability, and its establishment was contracted for
The testimony, therefore, offered by the respondent, to show “what would have been a proper wall to have used in the reservoir to have held water, to stand a reasonable length of time, taking into consideration the weather and the frosts which were liable to occur; the wall to be constructed of the material and in the manner provided in the supplemental contract,” and as to what effect frost would have upon the. walls, was competent.
Nor do I agree with the view indicated by said counsel, that the respondent was required to comply strictly with its agreement to pump water into the reservoir as provided in said contract, in order to entitle it to recover in the action. I think that a substantial compliance by the respondent with the agreement we?s sufficient, if the appellants wholly failed to perform the contract on their part. The agreement was made to enable the appellants to test the reservoir in order to ascertain if it were “water-tight,” and to give them an opportunity to repair any leakages which might be found in it. If, therefore, the respondent so far complied with its said agreement as to allow the appellants to accomplish that purpose, they could have no just grounds for complaint. It was immaterial whether the reservoir was filled with water one time or a dozen times in order to discover if it leaked or not. Whenever the water was pumped into it such fact could be readily ascertained. The appellants had the right under the second contract to draw the water off, — “to bleed the reservoir as
The issues in this case were mainly issues of fact. The appellants maintained that it did not require the three walls of the reservoir to be walled up and plastered as specified in the supplemental contract in order to render it water-tight; they claim that they established that fact by the tests made, and also claim that the respondent had failed to give them the opportunity to make the tests and do the repairing of the reservoir, as it agreed to do in and by said contract. These were the questions to be determined in the case, and they were very proper ones to be submitted to a jury. The bill of exceptions shows that cogent proof was introduced on the part of the respondent tending to show that the reservoir was not water-tight and could not be made so without bestowing thereon the additional work, labor and expense referred to, also that the appellants had been given, in accordance with said contract, reasonable opportunity to make the test and do the necessary repairing, and that they had neglected to avail themselves of it. The jury found a verdict for the respondent, and unless they were misled by the rulings of the court to the prejudice of the appellants, the judgment appealed from should not be disturbed.
The appellants’ counsel complain of many of the rulings of the court at the trial; of certain of the instructions given to the jury and of the refusal of the court to give
I entertain some doubt in regard to the correctness of the following instruction given by the court to the jury: “If you find that the supply-pipe of the reservoir did allow water to escape through its gates, and that such escape was due to the failure of the gates to shut by reason of gravel getting into the pipe, and if you further find that such gravel got into the pipe from the reservoir after the twenty-first day of June, 1887, and before the expiration of the ninety days, by reason of its imperfect construction and in its ordinary use, I instruct that such loss was within the scope of the undertaking of the contractors and they are to be held responsible therefor.” “That filtration in the sense used in the instructions meant leakage from the reservoir from any cause owing to its defective construction and its incapacity by reason thereof to hold water. ” The escape of water through the supply-pipe of the reservoir, whatever may have been the cause, could not mean “filtration” as defined by the dictionary.
But the parties to the said contract certainly did not intend to use the word in the sense in which it is defined; they could not have meant by it the act or process of filtering. They undoubtedly intended it in the broadest sense which could be implied therefrom, viz., “passing through.” They must have meant the escape of the water contrary to the design of the system, which could be obviated by the “walling up of the walls of the reservoir” and doing the plastering as specified, as no other view would be consistent with the obvious intention of the parties. The system of water-works put in by the contractors under the original contract with the city could only be operated by pumping water from a well near the river and forcing it through a receiving pipe, where it was held by means of gates in the pipe in order that it might be drawn off through the mains which supplied the town. The con
The theory of the respondent’s counsel at the trial of the case in the circuit court was that the action of the water upon the walls of the reservoir, owing to its imperfect construction, loosened and set in motion particles of gravel which found their way into the supply-pipe and prevented its gates from closing, thereby causing a waste of water through the same. In view of the testimony on the part,of the respondent in support of this theory the said instruction was based, and I am of the opinion, after a due consideration of the two contracts, the nature of the subject matter thereof and circumstances connected therewith, that it was properly given.
The judgment appealed from will therefore be affirmed.
