Allied Chemical Corp. v. Alpha Portland Industries, Inc.
| Citation | 58 A.D.2d 975,397 N.Y.S.2d 480 |
| Parties | ALLIED CHEMICAL CORPORATION, Appellant-Respondent, v. ALPHA PORTLAND INDUSTRIES, INC., Respondent-Appellant. |
| Decision Date | 12 July 1977 |
| Court | New York Supreme Court Appellate Division |
Bond, Schoeneck & King, H. Dean Heberlig, Jr., Syracuse, for appellant-respondent.
Dewey, Ballantine, Bushby, Palmer & Wood, New York City (Kenneth H. Holmes, New York City), for respondent-appellant.
Before MOULE, J. P., and CARDAMONE, DILLON, GOLDMAN and WITMER, JJ.
Both parties appeal from a denial of their motions for partial summary judgment. Plaintiff seeks an order declaring that the contract between the parties has terminated, while defendant requests a declaration that the contract continues in full force and effect. Special Term determined that factual questions exist concerning both the intent of the parties as to the meaning of the terms of the contract and also whether the parties modified the contract by their conduct subsequent to its execution.
In 1921 plaintiff's predecessor in interest, The Solvay Process Company, and defendant entered into a contract whereby plaintiff promised to sell a certain quantity of limestone to defendant each week.
Paragraph "9" of the agreement provides:
The contract also grants defendant an option to purchase quarrying rights, if plaintiff "ceases quarrying stone from its present quarries", on up to 50 acres of limestone-bearing "land now comprising such quarries".
In 1925 the contract was amended to increase both the quantity of limestone to be sold as well as the number of acres subject to defendant's option. The amendment further prescribed that the 1921 agreement "shall have the same force and effect as heretofore, as fully, in all respects, as if this amendatory arrangement had not been entered into".
In 1975 plaintiff ceased quarrying stone on the lands it quarried in 1921 and notified defendant that it was terminating the agreement. Defendant responded that the contract was still in force and warned that it would hold plaintiff responsible for any damages resulting from nondelivery of the limestone. Special Term correctly determined that plaintiff continues to quarry stone for its own manufacturing purposes, but the question presented is whether plaintiff has ceased quarrying stone at its "present quarries at Jamesville".
In accord with the fundamental principle that the words in a contract should retain their plain and ordinary meaning unless the context mandates a different interpretation (Laba v. Carey, 29 N.Y.2d 302, 308, 327 N.Y.S.2d 613, 618, 277 N.E.2d 641, 644, mot. for rearg. den. 30 N.Y.2d 694, 332 N.Y.S.2d 1025, 283 N.E.2d 432; Mars Assoc., Inc. & Normel Const. Corp. v. Health & Mental Hygiene Facilities Imp. Corp., 47 A.D.2d 5, 364 N.Y.S.2d 67, affd. 38 N.Y.2d 878, 382 N.Y.S.2d 744, 346 N.E.2d 545), we find that the term "present quarries" refers only to the quarries existing at the time of the execution of the agreement (see Hawaiian Pineapple Co., Ltd. v. Saito, 9 Cir., 270 F. 749; Barry v. Mayor, 38 App.Div. 632, 56 N.Y.S. 1049; Berger Properties, Inc. v. Kay Jewelry Co., Inc., 147 Misc. 173, 263 N.Y.S. 576).
We further conclude that the contract has no applicability to lands which were not being quarried in 1921. The option provision of the contract grants defendant quarrying rights to "the land now comprising such quarries". Obviously, the option does not include lands subsequently excavated and thus defendant's position that it is entitled to purchase limestone removed from lands which were not being quarried in 1921 is at least inconsistent with the option clause.
Moreover, the word "quarry" has been interpreted to mean the spot where the stone is extracted and not "an indefinite extent of stone or rock which may be worked" (Shaw v. Wallace, 25 N.J.Law 453, 462 (Supreme Court); accord, Hoysradt v. Delaware, L. & W. R. Co., C.C., 151 F. 321, rvsd. on other grounds, 3 Cir., 159 F. 383, cert. den. 209 U.S. 551, 28 S.Ct. 761, 52 L.Ed. 922). Likewise, the dictionary defines "quarry" as "a place where stone or slate is excavated" (Webster's New Twentieth Century Dictionary, (2d ed.), Unabridged 1964). Accordingly, we conclude that the parties intended that the contract should terminate when plaintiff ceased quarrying stone upon the lands which it owned at the time of the execution of the contract.
Defendant's argument that plaintiff continues to operate...
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