139 Mo. App. 276 | Mo. Ct. App. | 1909
Defendant 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
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 sense, 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 properly 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. Lucas, 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 treated 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 or mining gravel we see no reason why this material, when used for this purpose, may not also be denominated “macadam” as was done in the case of Jones v. Plummer, supra.
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 gravel was used for repair work on streets that had been formerly
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 for 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 then if this cost be less than the selling price, the difference will constitute the profit. The
For the errors noted, the judgment will be reversed and the cause remanded.