Camp v. Wilson

• Decision Date: 29 June 1899
• Citation: 97 Va. 265,33 S.E. 591
• Court: Virginia Supreme Court
• Parties: CAMP. v. WILSON.

33 S.E. 591

97 Va. 265

CAMP.

v.WILSON.

Supreme Court of Appeals of Virginia.

June 29, 1899.

CONTRACT—CONSTRUCTION—ACTS OF PARTIES —QUESTION FOR JURY—ACCOUNT STATED.

1. Plaintiff agreed to cut, haul, and deliver to defendant, from timber lauds belonging to a certain company, a certain amount of merchantable saw logs per day. Held, that there was no express covenant requiring defendant to secure standing timber in sufficient quantities to enable plaintiff to comply with his undertaking.

2. Whether or not parties to a contract have placed a construction upon it not shown by the language thereof is a question of fact to be proven by the evidence, and, if controverted, to be submitted to the jury, and it is error for the court, instead of so doing, to speak in its instruction of the "true construction" of the contract.

3. Where, under a contract providing for monthly accounts between the parties, such accounts are duly had, and settlements made, they are, in the absence of fraud or mistake, final and conclusive between the parties, unless they were made with knowledge of both parties that one was to be held responsible in the final settlement, on the conclusion of the contract, for certain damages claimed by the other party.

Harrison, J., dissenting.

Error to circuit court, Nansemond county.

Action by Isaac T. Wilson against W. N. Camp. Judgment for plaintiff. Defendant brings error. Reversed.

Prine & McLemore, for appellant.

R. H. Rawles and Lee Britt, for appellee.

KEITH, P. Camp and Wilson entered into the following contract:

"This agreement, entered into on the 11th day of September, 1889, between Isaac T. Wilson, of the first part, and W. N. Camp, all of Nansemond county, state of Virginia, of the second part, witnesseth: That whereas, the said Isaac T. Wilson, of the first part, for the consideration hereinafter stipulated, has bargained and agreed to cut, haul, and deliver to the said W. N. Camp, the second party, from the timbered lands belonging to the Gay Manufacturing Company along the line of the Suffolk and Carolina Railroad, and those on the A. & D. R. R., forty thousand feet of merchantable sawmill logs per day, or an average of about that quantity per day, for a period of two years; or, in other words, about ten millions of feet for each year, —seven millions feet from timber on the Suffolk & Carolina Road, and three millions feet from the timber on the A. & D. R. R., at or near what is know as 'Holland's Corner.' "

By the terms of this contract, it was ex pected to occupy about the period of two years in its execution, and in accordance with it the parties thereto commenced operations. At the end of the month the quantity of lumber cut and delivered by Wilson to Camp was ascertained, and an account made out, which was paid by Camp about the middle of the succeeding month. This was the general course of business, though it happened upon one or two occasions that the account was not settled for two, or it may be three, months. During the conduct of the business, Wilson complained that standing trees were not furnished, and that in other respects Camp had not complied with his contract, whereby he had been delayed, to his serious loss, because his business required a large equipment of men, horses, and material, and he notified Camp that he intended to hold him responsible for the damages thus sustained, which were not embraced in any of the periodical settlements made between them. On the other hand, there is evidence tending to prove that the monthly settlements before mentioned were made by Camp, and the money received by Wilson, without making any objection or protest. When the work was completed under the contract, Wilson sued Camp in the circuit court of Nansemond county for the time lost and damages thereby sustained by reason of Camp's delay in providing standing timber to be cut, hauled, and delivered in accordance with the terms of the contract Wilson recovered a judgment of $1,500, and, Camp having taken sundry bills of exceptions to the rulings of the circuit court, the case is now before us upon a writ of error.

During the progress of the trial Camp asked the court for two instructions, which are as follows:

"First. The court instructs the jury that by the contract of September 11, 1889, there is no obligation on the defendant to furnish I. T. Wilson, the plaintiff, any standing timber, and that if they believe from the evidence that the damages sustained by the plaintiff were because of a failure to obtain at convenient seasons standing timber from the lands of the Gay Company, that he cannot then recover from the defendant, unless they further believe that said defendant was the cause of plaintiff's failure to get said timber.

"Second. The court instructs the jury that if they believe from the evidence that monthly or other periodical settlements of accounts were made between W. N. Camp and I. T. Wilson during the continuance of the contract between them, for the purpose of showing the standing of the accounts and ascertaining the balance due from one to the other, and further believe that such balance, when found due to Wilson, was paid to him by the defendant, W. N. Camp, without objection on the part of Wilson to any item therein or to the balance as thus ascertained and received, then the court instructs them that same would be an account stated, and the plaintiff is bar-red from recovering damages growing out of the transaction of the parties prior to said account and settlement, unless they further believe that said balance, when accepted by said Wilson, was received by him in ignorance of the fact that such damages had been caused, or that there was some fraud on the making up of said account."

The court refused to give these instructions, and in lieu thereof gave instructions numbered 7 and 13, which are as follows:

(7) "The court instructs the jury that, by a true construction of the contract between Camp and Wilson, it became the duty of Camp to use all reasonable means in bis power to secure necessary rights of way, and steading timber from the Gay Company in sufficient quantities to enable the plaintiff, with a proper equipment of men, train, and cars, etc., to cut and deliver to said Camp, under said contract, 40, 000 ft. of logs per day during the continuance of said contract; and if the jury believe from the evidence that said Camp did use all reasonable means to furnish necessary rights of way and standing timber, in quantities as aforesaid, from the Gay Company, then his liability ceased on that account."

(13) "The court instructs the jury that if they believe from the evidence that monthly or periodical settlements of accounts were made between W. N. Camp and I. T. Wilson during the continuance of the contract between them, for the purpose of showing the standing of the accounts, and ascertaining the balance due from one to the other, and further believe that such balance, when found due to Wilson, was paid to him by the defendant, W. N. Camp, without objection on the part of Wilson to any item therein, or to the balance as thus ascertained and received, and if the jury believe from the evidence that when said Wilson received said balance he had not notified, or did not then notify, said Camp of his intention to hold him responsible for damages sustained by Camp's failure to comply with the contract on his part, then they must find for the defendant"

The action of the court in refusing the instructions asked for by Camp, and giving those in lieu thereof asked for by Wilson, is assigned as error.

I am of opinion that the first instruction asked for by plaintiff in error should have been given. There is certainly no express covenant requiring Camp to secure standing timber from the Gay Company in sufficient quantities to enable Wilson to comply with his undertaking. Nor can 1 see that any such covenant is to be necessarily inferred from the language used in the contract. If, therefore, the contract is to be so construed, it must be by force of the fact that the parties themselves have placed that construction upon it. In a doubtful case, the construction placed upon a contract by the parties will be accepted by the court; and while, in my judgment, with respect to this contract, there is no room for such an interpretation, yet it is enough for me to say that whether or not the parties have themselves placed such a construction upon it is a question of fact to be proved by the evidence, like any other fact and, if controverted, to be submitted to the jury upon proper instructions. If, therefore, I am correct in saying that the language of the contract does not by its terms admit of the construction placed upon it by the circuit court, but that in order to reach that construction it was necessary to adopt as a part of the contract the interpretation placed upon it by the parties themselves, then the court, instead of saying that by a "true construction" of the contract between Camp and Wilson it became the duty of Camp to do certain things, should have said: "If from the evidence the jury are of opinion that Camp and Wilson have placed a construction upon this contract, that then they are bound by it, and certain duties flowed from it" In other words, it is the duty of a court to construe a written contract; but whenever it is necessary to refer to testimony of witnesses in order to ascertain the contract, or where it is necessary to refer to the testimony of witnesses to ascertain facts in the light of which the contract is to be construed, then the court is bound to refer such controverted matters of testimony to the decision of the Jury. I am averse, under such...