Viernow v. City of Carthage
123 S.W. 67
Mo. Ct. App.
1909
Check Treatment
COX, J. —

Dеfendant contends that the court committed error in permitting plaintiff to show by witnesses what the parties to the contract understood the word “macadam” to mean when they executed the contract, that the contract is not ambiguous, and, hence it was the duty of the court to construe it and declare its meaning as it was written.

The word “macadam,” as used in this contract, evidently refers to the material to be used, and there can be *279no question but that the crushed stone to ‍‌​​​​‌​‌​​‌‌​​​​‌‌​‌‌​‌‌‌​​‌‌‌​‌​​​‌​‌‌​​‌​​​‌​​‍be furnished by plaintiff was “macadam.”

The word “macadam” may have a variety of meanings according to the understanding of the parties using the word. It has a technical or scientific meaning, and when used in that sеnse, it means the material used by Macadam, the originator of the system of road-building called macadamizing. This material consists of pieces of broken stone of a uniform size weighing not, to exceed six ounces each. Some courts have given it this meaning, and proрerly so in the cases then before them. Thus, in State v. Curry, 1 Nev. 251. The court, in construing a statute authorizing ■ any person who might build a macadamized road between two points to charge toll thereon, held that to come within the statute, the road must be built according to the system and by use of the same process and material as that used by Macadam, the originator of that system of road-building. This same rule was followed in Partridge v. Luсas, 99 Cal. 519, 33 Pac. Rep. 1082, in construing an ordinance in relation to street paving; but ‍‌​​​​‌​‌​​‌‌​​​​‌‌​‌‌​‌‌‌​​‌‌‌​‌​​​‌​‌‌​​‌​​​‌​​‍this term may have other meanings. Thus in Jones v. Plummer, 118 S. W. 109, the Saint Louis Court of Appeals trеated a street improved by the use of gravel, none of which were to exceed two and one-half inches in diameter, as a macadamized street and the gravel used was'denominated “macadam.”

The purpose to be attained in macadamizing a street is to give to it a hard, smooth surface, supported by a compact body, formed by pressing together small pieces of a hard substance so that it will withstand the weight of vehicles and at the same time resist the effects of frost and rain, and thus furnish a good road at all seasons of the year. The material generally used is crushed or broken stone, but if the same purpose can be attained by the use of river оr mining gravel we see no reason why this material, when used for this purpose, may not also be denominated “macadam” as was done in thе case of Jones v. Plummer, supra.

*280The clause in this contract by which the city agrees “to use said crushed stone (meaning, of course, stone crushed by plaintiff) in all street construction work and all repair work done by it where the improvement is made with macadam,” was evidеntly intended for plaintiff’s benefit and must have been intended to protect him against competition from other men, should there be any, who might рroduce material similar to his product; but it may also have been intended to protect him against the use by the city of other material for the same purpose for which his product was to be used. It not clearly appearing upon the face of the contrаct just what purpose was to be subserved by the insertion of this clause therein, there exists an ambiguity which, we think, it is proper to explain by pаrol testimony, and hence hold that the trial court was right in permitting plaintiff ‍‌​​​​‌​‌​​‌‌​​​​‌‌​‌‌​‌‌‌​​‌‌‌​‌​​​‌​‌‌​​‌​​​‌​​‍to introduce testimony tending to show that the parties to this contraсt understood, at the time of its execution, that the term “macadam” included river and. mining gravel as Avell as crushed stone. This position is strengthened by the fact that the contract does not designate to what size the stone to be crushed by plaintiff was to be reduced by the process of crushing. The term “crushed stone” is not a term of exact meaning, but stone broken by machinery may be of different sizes after being crushed, аnd yet the entire product would be properly called crushed stone. These parties probably had some definite understanding as tо that, yet the contract says nothing about it. They may also have had an- understanding as to what material the term “macadam” was to includе, and, if so, it would certainly be proper to allow it to be shown by extrinsic testimony.

In the trial below a witness Avas permitted to testify to the provisions of city ordinances. This was erroneous. The ordinance should have been produced.

It is claimed by defendant that some gravеl was used for repair work on streets that had been formerly *281improved by tbe use of gravel, aud it is contended that this was not prohibited by the contract. If it be shown that the term “macadam” included gravel, then whether or not gravel could be used on this sort of repair work would depend upon the nature of the work. If, for any reason, the repair work should not require the use of material in such a way that, if crushed stone were used, it would form a compact body, then it could not be said to be macadam, and, hence, in that class of repair work, grаvel might be used, but, if in making such repairs, crushed stone could be used in stich a way that it would form a ‍‌​​​​‌​‌​​‌‌​​​​‌‌​‌‌​‌‌‌​​‌‌‌​‌​​​‌​‌‌​​‌​​​‌​​‍compact body as it would in original street construction work, then it would be the duty of the city to use it. It is also claimed that some gravel was used as a thin layer over the crushed stone for thе purpose of forming a binder only and to more readily give to it a smooth surface. We think this was permissible under the contract. The evidеnce shows that some gravel was used in both of these ways, but it was not distinguished from that used as “macadam,” that is, to form the body of the street covering, hence, must have been included in the amount used for which defendant was held liable. This was error.

This is an action to recover for profits plaintiff contends he would have made if defendant had complied with its contract and had permitted plaintiff to furnish crushed stone fоr street improvements and repairs made by defendant during the life of the contract. If defendant breached its contract then the question as to whether or not plaintiff can recover for profits lost by reason of such breach, will depend entirely upon his ability to prove by competent evidence what the lost profits were. This he cannot do, over the objection of defendant, by simply stating that his profit was twenty cents per cubic yard as was done in the trial of this case, but the facts showing the cost of production must be given, and thеn if this cost be less than the selling price, the difference will constitute the profit. The *282court, therefore, erred in permitting this testimony to go to the jury, and without this testimony there was no evidence in this case on which to base a verdict for profits in any amount. For a discussion of this question and citation of authorities to sustain this position see S. O. Morrow et al. v. Missouri Pacific R. R., decided at this term.

For the errors noted, the judgment will ‍‌​​​​‌​‌​​‌‌​​​​‌‌​‌‌​‌‌‌​​‌‌‌​‌​​​‌​‌‌​​‌​​​‌​​‍be reversed and the cause remanded.

Nixon, P. J., concurs. Gray, J., having been of counsel, not sitting.