Blair v. Corby

• Decision Date: 28 February 1866
• Citation: 37 Mo. 313
• Parties: WILLIAM BLAIR, Appellant, v. JOHN CORBY, Respondent.
• Court: Missouri Supreme Court

37 Mo. 313

WILLIAM BLAIR, Appellant,

v.JOHN CORBY, Respondent.

Supreme Court of Missouri.

Febuary Term, 1866.

Appeal from Buchanan Court of Common Pleas.

Vories & Vories, for appellant.

If language is used which has a technical or local or provincial meaning which is not understood by the court, or when words have a particular meaning when used in connection with a particular kind of transaction, the court should admit parol evidence to apply or explain the particular words used. (1 Greenl. Ev. § 280 and notes, and § 292 et seq.) And where, also, circumstances and facts arise during the execution of a contract, which were not within the contemplation of either party, then either party, by parol, may show the fact that said circumstances or things were outside of the contract, and in order to do so, may show the particular meaning and effect of the words or phrases used in the contract. (Dubois v. Delaw. & Hud. Canal Co., 12 Wend. 334; Shepard v. St. Charles West. P R. Co., 28 Mo. 373, and cases cited; Reed v. Hobbs, 2 Scam. 297.)

The defendant pointed out no objection to the evidence, so that the court might see upon what ground the objection was taken, wherefore this court will presume that the court below ought to have admitted the evidence, as it might, for aught that appears, be inaterial, or the plaintiff might have made it material, if the objection had been defined. (Clark v. Conway, 23 Mo. 437; 32 Mo. 311; 33 Mo. 349; 12 Mo. 280.)

Points and authorities for respondent:

I. The items of grubbing and clearing excavation of foundation, wasted and indurated earth, in exhibit “A.” of Hunt's deposition, were properly excluded by the court. (Shepard v. St. Charles West. P. R. Co., 28 Mo. 373; Boyle v. Agaw. Canal Co., 22 Pick. 384.)

II. A portion of the excluded evidence is objectionable, as being offered to control and vary a written contract, by parol evidence. (22 Pick. 384; 1 Greenl. Ev. § 275; 2 Sumn. 569.) Another portion of the excluded evidence is objectionable, as being offered to sustain issues that were not made in the pleadings; and still another portion of the excluded evidence is objectionable, as being offered to show a modification of the written contract by parol evidence, when the written contract itself provides that no such modification should be made unless the same is reduced to writing.

III. The language of the contract is plain, and its terms cannot be contradicted by any evidence of custom inconsistent with its terms. (3 Kent's Com. 359, n. f., 10th ed.; 2 Sumn. 569.)

IV. There was no such decision of the court in this case as precluded plaintiff from a recovery. The Supreme Court will not therefore interfere. (Layton v. Riney, 33 Mo. 87; 33 Mo. 375-6.)

HOLMES, Judge, delivered the opinion of the court.

The petition is based upon a written contract for the building of a portion of the western division of the Hannibal and St. Joseph Railroad, and the plaintiff claims to recover from the defendant a balance of fifteen hundred dollars for what he alleges to be due for extra work done under said contract, but over and above what was therein specially provided for. The plaintiff had contracted to construct and complete the clearing, grubbing, grading and masonry, and to furnish all requisite materials for the completion of the work, according to the specifications annexed, and he was to receive, in full compensation therefor, certain fixed prices for the kinds of work specified, among which were for embankment or for excavation, twenty cents per cubic yard; and in the specifications, excavation was divided into five classes; first, earth excavation, including all materials except “hard-pan,” and quicksand, and rock; second, “hard-pan;” third, quicksand; fourth, loose rock; fifth, solid rock; but no fixed prices were named in the contract for any of these divisions but for “excavation.”

It was stipulated in the contract that the determination of the measurements and calculations of the engineer of the respective quantities and classifications of such excavation should be final and conclusive. Another provision was, that when rock, or “hard-pan,” was placed in embankments, and had been paid for as such, the price of embankment should be deducted therefrom, that is, it was not to be paid for both as excavation and embankment, but the excess of the price of excavating such material, only, was to be paid for. The plaintiff sought to recover for several items, as extra work, which, it was conceded, were not embraced within the terms of the written contract, and also for the following items, which are the main subjects of dispute in the case, namely; chopping and clearing, at sixteen stations, indurate earth, and excavation of foundations wasted.

The answer denied all the material allegations of the petition, and averred, by way of defence, that the plaintiff had been fully paid the whole amount due him, and that the matters in issue had been adjudicated on a former trial, in another suit.

The contract was read in evidence by the plaintiff in support of his petition, and he offered to prove (among other things) in substance, that it was expressly agreed, in making the contract, that it should only apply to ordinary earth or excavation, and not to indurated earth; that the terms used in the contract concerning embankment and excavations, were intended and understood to mean common earth excavation; that, after it was discovered that there was indurated earth to be excavated, there was an agreement entered into between the parties as to the amount to be paid for excavating such indurated earth, and the terms of the agreement, and the prices of different kinds of excavation; and that, at the time of making the contract, it was understood by the parties that there was no excavation but that of common...