Dalhoff Construction Company v. Maurice

• Decision Date: 27 April 1908
• Citation: 110 S.W. 218,86 Ark. 162
• Parties: DALHOFF CONSTRUCTION COMPANY v. MAURICE
• Court: Arkansas Supreme Court

110 S.W. 218

86 Ark. 162

DALHOFF CONSTRUCTION COMPANY v. MAURICE

Supreme Court of Arkansas

April 27, 1908

Appeal from Arkansas Chancery Court; John M. Elliott, Chancellor reversed.

Judgment reversed and cause remanded.

H. F Auten, for appellant.

Pugh & Wiley, for appellee.

OPINION

HILL, C. J.

Maurice filed suit in chancery court against the Dalhoff Construction Company, the St. Louis, Iron Mountain & Southern Railway Company and Martin & Boyd, seeking to recover under a contract between Maurice and the Dalhoff Construction Company, and also for material furnished Martin & Boyd, which it was alleged the Dalhoff Construction Company assumed the payment of, and to enforce a lien against the railway company.

The Iron Mountain Railway Company was building a line of railroad in the eastern part of the State, crossing the Arkansas and White rivers near their mouths, and the Dalhoff Construction Company was the contractor. Maurice was a subcontractor under the construction company on trestle work between the Arkansas and White rivers. Maurice sued the construction company, and obtained judgment and a lien on the railroad. This is an appeal by the construction company as to three items allowed, and a cross appeal by Maurice for one item disallowed.

The first item is for $ 1,891.68 for putting on 7,882 lineal feet of capping at 24 cents per lineal foot. So much of the contract as is material to that point reads as follows: "Said F. W. Maurice, known throughout this agreement as contractor, hereby agrees to and with the Dalhoff Construction Company, known throughout this agreement and referred to as the company, to do and perform all the furnishing, driving and capping all piles, trestle work between the Arkansas and White rivers, on the Memphis, Helena & Louisiana Railroad. * * * For and in consideration of said work being duly performed and completed as provided, and so accepted by said engineer, said company are to pay contractors as follows: For driving and capping, twenty-four cents per lineal foot, the company to furnish all caps and necessary iron work for construction and transportation of labor and material."

Maurice contended, and was sustained by the chancery court, that he should have twenty-four cents per lineal foot for placing the caps on the piling. The construction company contends that the twenty-four cents included driving and capping the piles, as well as furnishing them. Each party has produced evidence tending to corroborate his theory, but the question depends upon a construction of the contract, and testimony of what was done under it could not be considered unless it was ambiguous. When this testimony is turned to to aid the construction of the contract, it is found to be conflicting, and there is little, if any, light thrown upon the question by it. The contract is not ambiguous, but stipulates that Maurice was to furnish the piles and drive and cap them for twenty-four cents per lineal foot, and that the company was to furnish the caps. These caps were necessarily placed upon the piles after they were driven, and were a part of the permanent structure of the trestle. The court erred in making a separate allowance for the capping.

The next question is as to the interest. The decree was for $ 4,647.34, and the court allowed interest from the time of the last estimate,...