27 Del. 423 | Del. Super. Ct. | 1913
delivering the opinion of the court:
This is an action of assumpsit brought by the William Wilkens Company against the Consolidated Agricultural Chemical Company to recover damages for the alleged non-performance of a certain contract entered into between the parties, as follows:
“Sold to Consolidated Agricultural Chemical Company, Wilmington, Del., for account of the William Wilkens Company,
Baltimore, Md.
“Stock on hand and entire production to February 1st, 1912, estimated about ten (10) to twelve (12) car loads of wet hair waste, represented by sample received from' sellers on the fourteenth inst. and submitted to buyers under our No. 9088, but no analysis guaranteed, at ten dollars and twenty-five cents ($10.25) per ton of two thousand pounds f. o. b. Baltimore and Ohio Railroad cars, sellers’ switch, Baltimore, Md.
“Shipment in bulk in car load lots as ready.
“Settlement on weights ascertained at point of shipment.
“Terms:—Prompt cash upon arrival.
“It is mutually agreed and understood by both sellers and buyers that the above contract is made subject to suspension in case of fire or other unavoidable accidents to the machinery or works of the producers or users of the material or any other interference by which they are prevented from producing or using the material, otherwise to be carried out in good faith. Executed in duplicate, buyers and sellers each furnished with a copy of this sale note.
“No responsibility assumed unless by special agreement. [Signed] The William Wilkens Company, Gustav A. Schlone, Pres. [Signed] Thos. H. White & Co., 'Licensed Merchandise Brokers.”
The declaration contains a special count on the provisions of the contract, omitting the conditions subsequent, and .also certain common counts. To each of the counts, the defendant pleaded non assumpsit, payment, set-off, and a special plea averring in terms the clause of the contract providing against' contingencies, and then alleged excuse for non-performance, as follows:
“That the said defendant at the time of entering into said contract was engaged in the manufacture of fertilizer at its plant, located in or near the Town of Newport, New Castle County and
Apart from the suggestion of which we have just disposed, the plaintiff substantially contends that there is nothing in the plea which would relieve the defendant from the performance of the contract declared on,—(1) because the stipulation specially pleaded entitles the defendant at most to “suspend” and not to rescind the contract; (2) because it does not appear that the plaintiff had any knowledge of the purpose for which the hair was to be used, or that it was in the mind of the defendant to use it for any particular purpose, or, assuming that the defendant was prevented from continuing its business at its plant in Newport, that it was still absolutely prevented from using the material at some other place or for some other purpose; (3) because the plea does not show that the defendant was “prevented” from operating its plant by the Board of Health, but shows only that the defendant'was required to abate a nuisance; and (4) because the defendant cannot by a violation of the law excuse itself from the performance of a contract.
To these contentions the defendant, in substance, replies: (1) That the parties expressly stipulated in the contract beyond the delivery of the goods; (2) that they had in contemplation the works and machinery of both, the use as well as the production of the wet hair waste, the nature and the incidents of the business of both, and also the probable causes of interference with either, that the contract must be construed with reference to the manner in which such production and use are ordinarily conducted, and that it must be supposed that the parties contemplated, among other things, such interference as the action of the Board of Health; (3) that time being of the essence of the contract,
The only question which remains to be considered is whether the defendant by reason of the premises laid in its plea is excused from the performance of the contract. It is a general rule of law that a contract must have a reasonable construction according to the intent and object of the parties. The subject-matter of the contract, its purpose, and the situation of the parties are material to determine their intention and the meaning of the language employed by them in making it; and, applying this general rule
It seems clear, also, that within the meaning and scope of the stipulation, they had in contemplation the works and machinery of both parties, and the use as well as the production of the wet hair waste. If this be so, they must be supposed to have had in mind the nature and incidents of the business of use as well as that of production and the possible causes of interference with either. The contract must be construed, therefore, with reference to the manner in which such businesses are usually conducted. D., L. & W. R. R. Co. v. Bowns, 58 N. Y. 573.
It is obvious that it was the intention of the buyers to buy and of the sellers to sell the wet hair waste produced at the works and by the machinery of the sellers; and in legal contemplation, at least, it was the intention of the parties that the material was to be used at the works and in the machinery of the buyers. Hence, under the express stipulations in the contract, it must be supposed that the plaintiff had knowledge of the manner in which the business of the defendant was conducted.
After having made provision against the contingencies of fire or other unavoidable accidents to the machinery or works, what kind of contingency or interference was within the contemplation of the parties when they further provided against “any other interference”? Was it not such interference as could not definitely be foreseen? Without attempting to suggest any of the other possible contingencies which the parties may have had in contemplation we think it sufficient to say that the interference preventing the use of the hair at the works of the defendant which arose from the action of the Board of Health subsequent to the contract and in the absence of bad faith on the part of the defendant, is within the meaning of the stipulation in the contract. To hold otherwise would be to deprive the stipulation of its obvious and reasonable meaning; and although it is true, as was urged, that courts ordinarily seek to sustain the obligation of a contract where the intention of the parties is ambiguous or uncertain,
In view of these conclusions it is not necessary to discuss the maxim that no man can take advantage of his own wrong, or the rule that impossibility by force of law is an excuse for non-performance of a contract absolute in terms. We might say, however, that in view of the mutual footing of the parties under their expressed stipulations, we think that the principle of the cases, Hughes v. Wamsutta Mills, 93 Mass. (11 Allen) 201, and Ldbaree v. Crossman, 100 App. Div. 499, 92 N. Y. Supp. 565, cited by the defendant, would be applicable even if the stipulations were not broad enough reasonably to include the action by the Board of Health. In other words, such action by the board at the works of the producers would have excused non-performance on their part in the absence of any stipulations; and under the contract, such action at the works of the users would have excused the users though the parties had not expressly provided against that contingency by the phrase “any other interference.”
For the maxim that no one may take advantage, of his own wrong to have any application in this case, it should appear that the causes which led to the action of the Board of Health were created by the defendant negligently or with a design to terminate the contract. Under the general demurrer, it must be taken to be admitted that the defendant could not have used the hair at its works (which were, as we have said, contemplated by the parties) in any other manner than it did. Whether any effort, sufficient under the terms and within the meaning of the contract, was made by the defendant to use the hair so that the Board of Health would not interfere; or whether, having interfered, like effort was made to have the order suspended; or whether the order was only temporary and did not continue throughout the period covered by the contract, so that the defendant, for at least a part of the period, could have used the hair; are issues that might be raised by appropriate replications to the plea.
The demurrer, therefore, is overruled.