Waters v. Lakewood Utilities Co.

203 Mich. 166 | Mich. | 1918

Ostrander, C. J.

(after stating the facts). Admitting appellants’ contention that the contract is not ambiguous, is not open to explanation by evidence, and that its meaning is to be found by the court, the construction placed upon it by the court may be sustained. The writing recites a request made by the defendant “to construct one side track,” the agreement is that it "shall be constructed, that the materials for construction shall be furnished by the plaintiffs, and shall be and remain the property of the plaintiffs. To construct is to bring together, to put together, the constituent parts of something in their proper place and order; to build; to form; to make; as, to construct an edifice. Synonyms are, to build; to erect; form; compile; make; fabricate. Construction means the process or act of constructing, the act of building; erection; the act of devising and forming; fabrication; composition. Vide Webster’s Inter. Diet. If nothing had been said about materials, it would have been open to question by whom they were to be furnished, and perhaps the necessary inference would be that defendant was not to furnish them. But the agreement is that plaintiffs are to furnish the materials for construction and to be and remain owner of them. To furnish is not, necessarily, to give, nor, necessarily, to receive pay for what is furnished. To furnish is to supply with anything necessary, useful or appropriate ; to provide; to equip; to fit out; to fit up; adorn. A secondary meaning is to give something. Vide supra. A thing useful to both parties was to be constructed, materials to be furnished by the plaintiffs, who remained owners of them, construction to be paid for by defendant. The single provision which may seem to negative the idea that only cost of construction was to be charged to defendant is the one fixing the estimated cost. But if we exclude evidence of what in fact the cost of labor, and the cost of materials, was, the apparent difficulty is obviated, because, if the estimated cost was too much a refund was provided for. Upon plaintiffs’, appellants’, theory then, it does not appear that error was committed upon this branch of the case.

Plaintiffs’ general and main contention, too, negatives any idea of accepting and using for their benefit the statement in the notice given by defendant that no more than $335.63 was the sum to be paid for the side track. They refused the benefit of the fact (assuming that it is an admission) upon the trial. In substance, the portion of the notice referred to asserts that extrinsic evidence ought to be received to explain the writing, and, being received, it would appear that the construction as agreed upon cost no more than $335.63, a position which plaintiffs at the trial denied and here deny. They insisted that the contract was to be interpreted by the court, according to its terms. They cannot maintain both positions.

The effect of the action of the trial court was to allow defendant to pay a claim ’for demurrage by setting off its cross-demand against plaintiffs. The Federal courts have held that in an action for freight charges the shipper cannot maintain a set-off for damages but must bring an independent action. Illinois Cent. R. Co. v. Hoopes & Sons, 233 Fed. 135; Johnson-Brown Co. v. Railroad, 239 Fed. 590; Chicago, etc., R. Co. v. Stein Co., 233 Fed. 716. The reason for the rule of the Federal courts is based upon the laws forbidding rebates and discriminations and the facility With which, under the guise of a claim for damages, a rebate of freight charges might be secured. Appellants discuss this point, contending that in principle no distinction can be made between a demand for freight and a demand for demurrage, but there is no exception referred to which raises the point and no specific assignment of error. Therefore, it will not be considered.

The judgment must be affirmed, and in this view the court below was right in awarding costs to defendant.

Bird, Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.