Empire Mills Co v. Burrell Eng'g & Constr. Co

• Decision Date: 23 June 1916
• Docket Number: (No. 6649.)
• Citation: 89 S.E. 530,18 Ga.App. 253
• Court: Georgia Court of Appeals
• Parties: EMPIRE MILLS CO. v. BURRELL ENGINEERING & CONSTRUCTION CO.

89 S.E. 530

(18 Ga.App. 253)

EMPIRE MILLS CO.

v.BURRELL ENGINEERING & CONSTRUCTION CO.

(No. 6649.)

Court of Appeals of Georgia.

June 23, 1916.

Error from City Court of Columbus; G. Y. Tigner, Judge.

Action by the Burrell Engineering & Construction Company against the Empire Mills Company. Judgment for plaintiff, and defendant brings error. Reversed.

McCutchen & Bowden, of Columbus, for plaintiff in error.

T. T. Miller, of Columbus, for defendant in error.

WADE, C. J. Burrell Engineering & Construction Company brought suit against the Empire Mills Company to recover a balance of $8S2.45 on a contract for the erection of a concrete elevator, and the further sum of $150 for furnishing and installing a certain tank; the total amount claimed aggregating $1,032.45, principal. The defendant filed a plea alleging a breach of the contract on the part of the plaintiff, in that the plaintiff had failed to comply with a certain stipulation in the "brief of specifications" attached to and made a part of the contract; the stipulation referred to being as follows:

"All gravel for concrete purposes shall be reasonably free from loam and vegetable matter. All gravel for foundation may be screened through a 2-inch ring. All gravel for bin walls, cupola walls, floors, roofs, columns shall be screened through a 1%-inch ring."

The defendant alleged that the plaintiff had failed to screen the gravel used in the concrete foundation, and thereby had injured and damaged the said foundation in the sum of $1,000, as more particularly set forth in the plea. The defendant claimed damages also in the sum of $2,500, because the plaintiff had, by improper construction of the said elevator, injured and damaged a brick building, near which the elevator was erected, as set forth in the plea.

The motion for a new trial presents but two questions which need be discussed. One of these relates to the construction of that provision in the building contract which refers to the gravel to be used in the concrete foundation and in the concrete walls. It is complained that the court erred in refusing to give a requested instruction to the jury that the word "may, " in the sentence, "All gravel for foundation may be screened through a 2-inch ring, " should be interpreted to mean "must, " and that the meaning of this part of the contract is that all gravel must be screened—that the gravel used for the foundation must be screened through a 2-inch ring, and that used for walls, etc., through a 1 1/4-inch ring. It is also complained that the court erred in submitting to the jury for determination the meaning of the word "may, " and erred further in several instructions to the jury as to the contentions of the parties. In construing every contract it is necessary to look to the purpose intended, and where two constructions are possible, one unreasonable and the other reasonable, to give to the instrument the reasonable construction which would serve to put into effect the evident purpose of the agreement.

It was insisted by the plaintiff that the provision as to the screening of the gravel must be interpreted strictly, and that the meaning of this stipulation is that the building company might, if it so desired, screen the gravel for the foundation through a 2-inch ring, but, if it did not so desire, it was under no obligation to screen this gravel at all. This is undoubtedly the plain meaning of the language used, if it be considered apart from the context, and without regard to the purpose for which this clause must have been inserted in the contract It must, be assumed that the reference to the diameter of the rings in the screen to be used for gravel intended for the foundation was not inserted in the contract idly and without any purpose whatever. To hold that the contractor was not bound by this clause to screen the gravel for the foundation at all, but the matter was to be solely left to his judgment, with the proviso only that, if he should determine of his own free will and accord to screen it, he must use screens with 2-inch rings, would give the contract an absurd construction, as this would permit the contractor to use in the foundation walls anything that could be denominated "gravel, " in the event he preferred not to screen that particular gravel, whereas, if he decided to use a screen, voluntarily undertaking the extra expense incident to its use, he must use only gravel small enough to passthrough 2-inch rings. In other words, such a construction would leave it optional with the contractor to incur or not incur the expense of screening the gravel used in the foundation walls, but, if he should decide, in the interest of good construction and at additional expense to him, to screen this gravel, it would place upon him, without any additional consideration or compensation, the further burden and expense of discarding all stone or gravel that would not pass through the 2-inch mesh. It is clear, then, that if the language relating to the gravel to be used in the foundation was intended to have any meaning whatever, it must have been intended as a stipulation that the contractor must screen this gravel,...