Durand v. Heney

• Decision Date: 26 September 1903
• Citation: 73 P. 775,33 Wash. 38
• Parties: DURAND v. HENEY.
• Court: Washington Supreme Court

73 P. 775

33 Wash. 38

DURAND v. HENEY.

Supreme Court of Washington

September 26, 1903

Appeal from Superior Court, King County; W. R. Bell, Judge.

Action by Frank Durand against Michael J. Heney. From a judgment for defendant, plaintiff appeals. Reversed.

Walker & Munn, for appellant.

John P. Hartman, for respondent.

DUNBAR, J.

This is an action for damages for the alleged breach of the following written contract:

'Memorandum of Agreement between Chas. E. Severance of Skagway, Alaska, and The Red Line Transportation Co. by its manager M. J. Heney Witnesseth.

'That the said Chas. E. Severance agrees to haul and deliver freight in a good condition from Summit of White Pass to Atlin City B. C. for the price of twelve (12) cents per pound. And the Red Line Transportation Co. by its manager M J. Heney agrees to pay the above price per pound for all freight safely delivered at its destination. The said company further agrees to give said Severance the exclusive hauling of all its Atlin freight at above price provided he can handle same, it also agrees to do all horsehoeing and repairing at reasonable rates based on cost, also to secure to him the benefit of a construction rate on feed and supplies to end of travel. Also in the case of Atlin freight falling off to give him the preference over others in hauling freight controlled by it for Bennett or other points. Settlements to be made monthly and said Chas. E. Severance to be allowed to draw when necessary 75% on all bills of lading after same has been accepted by said company. The said Chas E. Severance on his part agrees to have on hand at Summit of White Pass and ready to begin freighting by Feby 10th '99 sixty (60) head of good serviceable stock together with harness and full equipment necessary for handling said freight, and that he will put forth every effort to secure the safe and rapid transit of all freight entrusted to his care. It is hereby distinctly understood and agreed that all freight so handled must be delivered at its destination in as good condition as when received and that the said Chas. E. Severance shall be fully responsible for any loss or shortages which may occur through negligence of his teamsters or any other cause whilst freight is in his charge.

'Chas. E. Severance.

'Red Line Transportation Co.

'By M. J. Heney, Mgr.

'Skagway, Alaska, Jan. 23rd, 1899.'

At the close of the testimony of both plaintiff and defendant, the plaintiff having disclaimed any claim for damages growing out of the failure to receive Atlin freight the court took the case from the jury, or rather instructed the jury to bring in a verdict for the defendant, holding that the contract in relation to the Bennett freight was too indefinite and uncertain for enforcement. So that the question presented on this appeal is whether the meaning and purpose of the alleged contract is a question of law for the court or of fact for the jury. It is conceded that the general rule is that the construction of written instruments is a question of law for the courts. We think it may also be conceded that there are certain well-defined exceptions to this rule--as, where the identity of the subject-matter of a document, or its construction, depends upon collateral facts or extrinsic circumstances, the inferences from such facts when they are proven, should be drawn by the jury. Where it is an enforceable contract, and the ambiguity arises as to the relative responsibilities and duties of the respective parties under the contract, which responsibilities and duties can be determined either by proof of the meaning of the terms used in the contract or by a showing of the circumstances surrounding the parties with reference to the subject-matter of the contract at the time it was entered into, and there is any controversy over such facts, undoubtedly such contract should be submitted to the jury, and its meaning determined by that tribunal by aid of such explanatory testimony. But whether or not the instrument sued on embraces all the necessary elements of a contract, such as parties subject-matter, mutual assent, and consideration, is just as undoubtedly a legal question to be determined by the court. The first rule mentioned is founded in necessity, for words are frequently used in contracts which have a technical or scientific meaning, or a meaning understood by certain tradespeople in a particular sense; or provincialisms may be employed where words or terms used would be meaningless beyond the boundaries of the locality where the contract was entered into, and these words, while conveying a definite meaning to the contracting parties, cannot be intelligently interpreted by either judge or jury, testimony having to be resorted to to explain them. Where there is any dispute as to what they mean, the inferences from such testimony must be drawn by the jury. A large array of authorities have been cited by both respondent and appellant. We have carefully examined them, but we think they only sustain the law as announced above, and that there is not so much question as to what the law on the subject actually is as to whether the facts surrounding particular cases bring the case within the general rule or the exception. Carstens v. Earles, 26 Wash. 676, 67 P. 404, is cited and relied upon by the appellant in support of his contention, while it is claimed by the respondent that the same case announces the law as contended for by him. The instruction under consideration in that case was the following: 'You are further instructed that all contracts, whether written or oral, that have been introduced in this case, are before you for your consideration and interpretation, together with the circumstances and surroundings of the parties; and it is for you to determine from all the circumstances and evidence of the case, the attitude and conduct of the parties, what was the real intention of the parties.' The court then says:...