First National Bank of Emmett v. Cruickshank

• Decision Date: 05 April 1924
• Parties: THE FIRST NATIONAL BANK OF EMMETT, IDAHO, a Corporation, Respondent, v. ANNIE S. CRUICKSHANK and ALEXANDER CRUICKSHANK, Wife and Husband, Appellants
• Court: Idaho Supreme Court

225 P. 142

38 Idaho 789

THE FIRST NATIONAL BANK OF EMMETT, IDAHO, a Corporation, Respondent, v. ANNIE S. CRUICKSHANK and ALEXANDER CRUICKSHANK, Wife and Husband, Appellants

Supreme Court of Idaho

April 5, 1924

CONTRACT - CONSTRUCTION OF - WHEN NOT AMBIGUOUS-QUESTION OF LAW-PARTY-WALL.

1. Where owners of adjacent town lots agree in writing that one of them may construct a party-wall upon the dividing line between their properties and that the other will pay one-half of the cost of the same for a given length when he uses such wall and the agreement is not ambiguous, parol evidence is not admissible to vary its terms.

2. Where a written agreement is not ambiguous its construction is a question of law for the court.

3. Findings of a court on questions of fact have the force and effect of a verdict of a jury, and where there is a substantial conflict in the testimony this court will not set aside the findings of the trial court.

APPEAL from the District Court of the Seventh Judicial District, for Gem County. Hon. Ed. L. Bryan, Judge.

Action for breach of contract. Judgment for plaintiff. Affirmed.

Judgment affirmed, with costs to respondent.

Geo. C Huebener, for Appellants.

Where the language of a contract is susceptible of more than one construction it should be construed in the light of the circumstances surrounding the parties at the time it was made together with all the facts and circumstances leading up to and attending its execution. (Tilden v. Hubbard, 25 Idaho 677, 138 P. 133; State v. Twin Falls Canal Co., 21 Idaho 410, 121 P. 1039; Schurger v Moorman, 20 Idaho 97, Ann. Cas. 1912D, 1114, 117 P. 122 36 L. R. A., N. S., 313; Twin Falls etc. Co. v. Salsbury, 20 Idaho 110, 117 P. 118; Suave v. Title Guaranty & Surety Co., 29 Idaho 146, 158 P. 112; Kroeger v. Good, 13 Idaho 184, 89 P. 632; 13 C. J., sec. 497, p. 533, sec. 509, p. 540, sec. 514, p. 542.)

If there is doubt and uncertainty, not about what the substance of the contract is, but as to its particular application, it may be explained and properly directed. (22 C. J., sec. 1570, p. 1173.)

It is very generally held that the negotiations between the parties prior to the execution of a contract or other writing may be admissible for the purpose of aiding the court in the interpretation of the written instrument. (22 C. J., sec. 1585, p. 1183; Graham v. Brown Bros. Co., 30 Idaho 651, 168 P. 9.)

Finley Monroe, for Respondent.

Parol evidence was not admissible to vary the term of the written contract. (Hurt v. Monumental Mercury Min. Co., 35 Idaho 295, 206 P. 184; Webber v. Killorn, 66 Mont. 130, 212 P. 852; Flynn's Idaho Digest, p. 286, and cases cited.)

WILLIAM A. LEE, J. McCarthy, C. J., and Wm. E. Lee, J., concur.

OPINION

WILLIAM A. LEE, J.

--The parties to this action were the owners of adjacent lots in the town of Emmett. In May, 1920, they entered into a written agreement to build a party-wall on the dividing line between their respective properties, one-half of the wall to be on the property of each. The more material parts of said agreement read:

"The said first party in consideration of the covenants and agreements on the part of the second parties hereinafter contained, agree to at once commence the work of excavating for the construction of, the foundation for such party-wall, and at its present, own cost, charge and expense construct the same for a distance of 60 feet in length from the Main Street end of said lots south, and of concrete of a thickness of 20 inches, and from a proper depth for basement purposes up to within 16 inches of the surface of the present sidewalk, the same to be uniform in width constructed of such material as to be in every way permanent and also uniform in construction throughout.

"And the said parties of the second part agree that when at any time said second parties or their successors or assigns shall construct a building, making use of said party-wall, then they or their assigns will pay to said first party, at said time, one-half of the cost of said party-wall thus constructed of which they may make use, whether the same be for the full 60 feet or less, and at the present cost of such construction.

"It is further fully understood and agreed between the parties hereto that if either shall build upon such party-wall foundation, such wall shall be constructed of concrete of the same material and shall be uniform in construction with said foundation wall, but shall be only 12 inches in width, one-half thereof to rest upon the land of the other, being built in the center of said foundation and when the other shall make use of the wall so built the other shall pay to the one so building one-half of the cost thereof."

Respondent constructed a foundation wall and a sidewall upon such foundation in conformity with the terms of this agreement. The contract limited the length of the wall, for which appellants should be liable, to 60 feet, but respondent having occasion for a larger building constructed this wall to a depth of 80 feet and in computing the cost that was chargeable against appellant for their part of the construction deducted 25 per cent of the total cost which was incurred for the 80 feet so constructed. Appellants thereafter constructed a building, using this party-wall for the superstructure for the entire 60 feet which had been agreed upon in the contract but limited the basement which they constructed under their building to 13 feet instead of continuing it for the entire length of their building. Upon appellants having used this wall in the manner stated respondent submitted to them a statement of the costs which it had incurred in the construction of the first 60 feet of this entire wall. The statement contained one-half of the cost of the foundation for said 60 feet and one-half of the cost of the sidewall for the same distance. Appellants contend that under the terms of the agreement they were only liable for the cost of the foundation wall in so far as they should elect to use the same for basement purposes and accordingly tendered payment for one-half of the cost of the sidewall for the full 60 feet and for the cost of 13 feet of the foundation wall. Respondent having refused the tender attempted to claim a mechanic's lien for one-half the construction cost of this party-wall or the sum of $ 917.21, this being one-half the amount which it claimed to have expended for the foundation and superstructure wall to a distance of 60 feet from the front of the building.

The cause was tried to the court, which held that respondent was not entitled...