Matthews v. Danahy

• Citation: 26 Mo.App. 660
• Parties: JOHN J. MATHEWS, Appellant, v. DANIEL DANAHY ET AL., ADMINISTRATORS, Respondents.
• Decision Date: 02 June 1887
• Court: Missouri Court of Appeals

26 Mo.App. 660

JOHN J. MATHEWS, Appellant, v. DANIEL DANAHY ET AL., ADMINISTRATORS, Respondents.

Court of Appeals of Missouri, St. Louis.

June 2, 1887

APPEAL from the Franklin County Circuit Court, A. J. SEAY, Judge.

Affirmed.

J. W BOOTH and ZACH J. MITCHELL, for the appellant.

JOHN O'DAY, E. D. KENNA, and ADIEL SHERWOOD, for the respondents.

OPINION

LEWIS P. J.

The plaintiff was a sub-contractor under the defendants' intestate for the grading of a part of the St. Louis &amp San Francisco Railway. The sub-contract contained the following stipulation concerning the plaintiff's compensation: " For excavation of earth from cuts only including, if required, an extreme haul of one thousand feet, nineteen cents per cubic yard; and filling, in all cases, to be paid at fifteen cents per cubic yard for actual space filled, only." The only question for determination is, whether, in these provisions, the plaintiff was entitled to be paid fifteen cents per cubic yard for filling, in addition to nineteen cents for excavating, when the dirt used for filling was the same that was taken out and hauled from the excavation? The court, sitting as a jury, found that the pay for excavating, in such a case, was all that the plaintiff could lawfully claim, and gave judgment for the defendants.

Against the plaintiff's objections, a number of civil engineers were examined as experts, to establish the true meaning of the contract. One or more of them testified to the effect that the word, " filling," would be understood by engineers to mean an embankment made from " borrowed" dirt; that is, from dirt shoveled up from outside of the road bed, only. Others were of opinion that the sentence contemplated every filling or embankment, whether made from borrowed dirt, or from dirt hauled out from an excavation. The evidence thus drifted wholly away from the proper line of expert testimony, touching the application of technical terms peculiar to a trade or business, and became a mere series of criticisms on the interpretation of language in common use. Such analyses of the phraseology found in a written agreement belonged exclusively to the court. The so-called expert testimony, with its conflicts and disagreements, was altogether valueless, and should not have been considered for any purpose.

Looking at the nature of the contract and usages in universal acceptation with regard to such undertakings, as shown by the evidence, together with the compensation which the principal contractor was to receive from the company, and other facts developed in testimony, and not apparent on the face of the agreement, there are very strong reasons for believing that the parties, when they entered into the contract, never for a moment thought of any such understanding as is here insisted upon by the plaintiff. It must be admitted, however, that if excluding all other considerations, we confine ourselves to the literal meaning of the words used, it may be difficult to deny the plaintiff's interpretation of the undertaking. The filling, " in all cases, " is to be paid for at fifteen cents per cubic yard. It was agreed by all the experts that the terms, filling and embankment, are synonymous. It is plain that such a structure made of material from an excavation,...