Crass v. Scruggs

• Decision Date: 28 April 1897
• Citation: 115 Ala. 258,22 So. 81
• Parties: CRASS v. SCRUGGS ET AL.
• Court: Alabama Supreme Court

22 So. 81

115 Ala. 258

CRASS v. SCRUGGS ET AL.

Supreme Court of Alabama

April 28, 1897

Appeal from city court of Decatur; W. H. Simpson, Judge.

Action by J. W. Scruggs & Co. against J. T. Crass. There was judgment on a verdict for plaintiffs, and defendant appeals. Affirmed.

In view of the opinion on this appeal, it is unnecessary to set out at length the prolix and multiplied pleadings. The facts of the case necessary to an understanding of the decision are sufficiently stated in the opinion. The second agreement which was entered into in 1892 between the defendant and the plaintiffs, and which is referred to in the opinion, was in words and figures as follows: "Know all men that whereas, on the 12th and 13th of July, 1892, a meeting of the Decatur, Chesapeake & New Orleans Railroad Company was held in Shelbyville, Tennessee, for the purpose of compromising the existing indebtedness of said railroad company, also to effect a reorganization of same, to the end that speedy completion of said railroad may be made; and whereas, the following proposition was made to the creditors, viz.: First that a committee composed of seven of the largest creditors of said road, to be called the 'reorganization board,' is to be created, who is to issue a sufficient amount of first mortgage bonds-First, to pay 25 per cent. of amount of claims of attaching creditors; second, to complete the line of road between New Decatur, Alabama, and Shelbyville, Tennessee, but in no event is the amount of first mortgage bonds to exceed $300,000 or $350,000; thirdly to issue second mortgage bonds sufficient to pay the remaining 75 per cent. of claims of attaching creditors: Now, therefore, we, being creditors of said railroad company, as subcontractors under J. T. Crass, do bind ourselves, our heirs and legal representatives, to accept the above-mentioned proposition. We also bind ourselves, our heirs, and our legal representatives to pay, in first mortgage bonds of said railroad company, our pro rata of all costs that may have accrued in the shape of court costs, attorneys' fees, and any other necessary expense that may have been incurred in the prosecution of and collecting any and all claims against said railroad company in which we have an interest." On the trial of the cause there was a verdict and judgment for the plaintiffs, assessing their damages at $1,267.92. From this judgment the defendant appeals, and assigns as error the many rulings of the trial court to which exceptions were reserved.

O. Kyle and Tompkins & Troy, for appellant.

E. W. Godbey, for appellees.

BRICKELL C.J.

The action, in which the appellees were plaintiffs and the appellant defendant, was for work and labor done and performed by the plaintiffs at the request of the defendant on the track of the Decatur, Chesapeake & New Orleans Railroad. The complaint contained two counts, which correspond to the common counts in assumpsit for work and labor done and performed. The errors assigned are numerous, relating to the rulings of the court below on the extended and multiplied pleadings introduced in the course of the trial, the admission and rejection of evidence, and the giving or refusal of instructions to the jury. But the respective rights and liabilities of the parties are dependent on a few questions not difficult of solution, the first of which, and the more important as the case is presented and has been argued, we propose to consider, is the construction and operation of the contract of July 23, 1890, under which the greater part of the work was done. Separating the contract into its component parts, the first clause is the undertaking of the plaintiffs to do the grading on designated sections of the track of the railroad, completing the work by the 1st day of September, 1890. The succeeding clause is the engagement of the defendant, absolute and unconditional in its terms, to pay the plaintiffs specified prices for the work. The next clause, that from which the controversy arises, relates to the payment of these prices, and is in these words: "Payments based on engineer's estimates, and to be made on the 15th of each month, or as soon thereafter as said railroad company pays or causes to be paid the said J. T. Crass." The last clause is a declaration that the time specified for the completion of the work is of the essence of the contract. The point upon which hinges the correctness of many of the rulings of the court below is whether payment to the plaintiffs of the promised compensation was conditional, dependent on payment by the railroad company to the defendant, or whether it was payable on the 15th of each month during the progress and on the completion of the work, or within a reasonable time thereafter for the company to make or cause payment to be made the defendant.

There is no doubt of the general rule that a contract must be read and interpreted as a whole. All its provisions and stipulations must be regarded, and it is the duty of the court to consider the relations of the parties, their connection with the subject-matter, and the circumstances under which it was made. And the construction must make the whole consistent, giving all the parts due weight. Pollard v. Maddox, 28 Ala. 321; Comer v Bankhead, 70 Ala. 136; Mason v. Iron Co., 73 Ala. 270. The contract was drawn not without care, and imports that some contractual relation existed between the defendant and the railroad company by which the company was to pay him for the work or to furnish him with the means of making payment. Whether there was such relation, and, if it did not exist, whether the consequence was that the provision in reference to the postponement of payment to the plaintiffs was not inoperative, was a matter of much contention in the court below. This is a phase of the case we do not deem it necessary to consider, for, applying the general rules of construction we have stated, we do not doubt that the provision of the contract merely prescribes a time of payment, and not a condition upon which payment was dependent. Can it be reasonably supposed it was contemplated that the plaintiffs would devote their time, labor, and means to the work they were bound to complete within a particular period, without an absolute engagement from the defendant to pay them? There was no relation between the parties except that of employer and employés; and it is to this relation, defining the services the plaintiffs were to render, and the compensation for the services the defendant was to make, the first and second clauses of the contract are devoted. The clauses are in terms as absolute and unconditional as the subject-matter permits, and not more absolute and unconditional in respect to the one party than the other. The plaintiffs were bound to the performance of the work without the expression of any condition dispensing with performance, and without the expression of any condition the defendant engaged to pay them a certain compensation. The contract is not divisible. It is entire, for the grading of the two sections; and, if it had been silent as to the time of payment for the work, payment could not have been demanded until the work was completed. This was known to the parties, and, as the contract was drawn with care, the time of payment was not left to implication, but was the matter of express stipulation; and, it must be observed, the stipulation speaks of payment and of the time of payment, not of nonpayment nor in avoidance of the duty of paying. Any other construction would render the contract inharmonious in its several parts,-would place this stipulation in antagonism to the absolute engagement of the defendant to make payment of the compensation. The plaintiffs had no contract with the railroad company, were unknown to it, and to them the company owed no duty. The defendant had contractual relation with it, and from it expected to derive funds to meet his engagement to the plaintiffs; and it was time to...