Fitzimmons v. Acad. of Christian Bros.

• Decision Date: 31 October 1883
• Citation: 81 Mo. 37
• Parties: FITZIMMONS et al. v. THE ACADEMY OF CHRISTIAN BROTHERS.
• Court: Missouri Supreme Court

81 Mo. 37

FITZIMMONS et al.

v.THE ACADEMY OF CHRISTIAN BROTHERS.

Supreme Court of Missouri.

October Term, 1883.

Appeal from St. Louis Court of Appeals.

AFFIRMED.

Donovan & Conroy for Christian Brothers College, appellant.

The court erred in admitting evidence of the usages of trade. Pavey v. Burch, 3 Mo. 447; Martin v. Hall, 26 Mo. 386; Clamorgan v. Guisse, 1 Mo. 141; Kimball v. Brawner, 47 Mo. 398; Savings Bank v. Ward, 100 U. S. 195; Thompson v. Riggs, 5 Wall. 663; Insurance Co. v. Wright, 1 Wall. 456; Garrison v. Ins. Co., 19 How. (U. S.) 312; 1 Greenleaf Ev., (Redfield, 1st Ed.) § 292, p. 333, and cases cited in notes; 3 Phillips Ev., (5 Am. Ed.) p. 198, notes; 1 Best on Ev., (Am. Ed. 1875) p. 429, § 228. The usage of trade alleged was not proved. Southwestern Freight & Cotton Compress Co. v. Stanard, 44 Mo. 71; Walsh v. Miss. Trans. Co., 52 Mo. 434; Ober v. Carson, 62 Mo. 209; Adams v. Otterbeck, 15 How. (U. S.) 539; United States v. Buchanan, 8 How. (U. S.) 38; Garrison v. Ins. Co., 19 How. (U. S.) 312. The court erred in finding for respondents on their cause of action and upon the counter-claim of appellant.

G. A. Castleman for Fitzimmons & Laughlin, also appellants.

“ Quoties in verbis nulla est ambiguitas, ibi nulla expositio contra verba expressa fienda est.” Coke's Littleton, 147a; Aguilla v. Rogers, 7 T. R. 423; Burnet v. Kensington, 7 T. R. 222; Gerrard v. Clifton, 7 T. R. 674; 3 Parsons on Contracts, (6 Ed.) p. 495; Story on Contracts, (5 Ed.) § 780; Vattel's Law of Nations, B. 2, chap. 17, § 263; Webb v. Ins. Co., 14 Mo. 8

MARTIN, C.

This was a suit on a building contract, and both parties have appealed from the circuit court and the court of appeals. The controversy has arisen about the construction of the contract, there being no conflict of evidence as to the facts.

The plaintiffs as contractors, entered into a contract in writing with the defendant, wherein they undertook “to do the masonry in the Christian Brothers' College, at Cote Brilliant, according to plans and specifications for the same, for the sum of two (2) dollars, in addition to the price of rock per perch.” The plaintiffs laid up all the masonry work of the building, which consisted of 3,410 11-22 perches of “rubble” masonry and 1,365 4-22 perches of “footings” masonry. They failed to furnish the rock required for this masonry, and the defendant purchased and paid for it to the quarrymen, who delivered it at the building at the price of $1.10 per perch for “rubble” rock, and $3.25 per perch for “footings” rock. There were 2,638 11-22 perches of “rubble” rock, and 1,189 11-22 perches of “footings” rock, and the sum total of the bill for rock amounted to $6,768.12. The testimony, as conceded by both parties, shows that according to the custom prevailing at St. Louis, two methods of measurement are employed among builders, contractors and material men. The use and application of these two methods is determined by the subject to be measured, and the object to be arrived at in each case. In order to ascertain how much rock is contained in a building, so as to pay the demand of the quarryman, the measurer reckons corners only once, and excludes all openings for doors, windows, etc. In this method the actual amount of material contained in the wall is ascertained, and is called quarryman's measure. In order to ascertain how much “““masonry” has been completed so as to pay the demand of the mason for laying the rock in the wall, a different measurement is employed. The measurer counts corners twice, each corner constituting a part of two intersecting walls. He also counts all openings for doors and windows as if they were solid masonry. This is the builder's or mason's measurement. The distinction between it and the quarryman's measurement, rests upon the additional labor in the dressing, facing and arching, which is required in turning corners, and constructing windows and doors. This extra labor is taken as equivalent to the labor of building the wall solid throughout the whole length and breadth of it.

This custom of measurement rests upon good reasons, otherwise, it would hardly have become the custom which it is admitted to be. The controversy springs from the two methods of measurement applied by the parties respectively, to the subject matter of the contract. Where there are no corners, doors or windows, the two measurements will produce the same number of perches. But where, as in this case, there were corners, doors and windows, the perches of “masonry” will exceed the perches of “rock.” In this case the excess amounted to 947 15-22 perches. The defendant presents an account in which the method of measuring ““masonry,” as established by custom, is entirely ignored. In this account the amount of rock according to quarryman's measure, is stated, and the “masonry” finished by plaintiffs, is calculated at two dollars a perch, according to the same measurement applying to the rock. This method of computation brings the plaintiffs in debt to defendant in the sum of $1,177.33. The account stated under this method would stand as follows:

DR.

To rubble rock placed in wall, 2,638 11-22 perches at $2 per perch

$5,277.00

To footings rock placed in wall, 1,189 11-22 perches at $2 per perch

2,379.00

$7,656.00

CR.

By cash paid plaintiffs

8,733.33

By balance due defendant

$1,177.33

The plaintiffs insist that this result is erroneous and unjust, and I concur with them in this position. I do not think the masonry work of the plaintiffs, under this contract, can be legally ascertained and paid, according to the measurement which custom has applied to rock from the quarry, and not to rock inclusive of labor, as contained in the finished wall. The plaintiffs submit an account, in which they ignore entirely, the quarryman's measurement, as applied to rock in the wall, and insist that the rock used in the building, although not furnished or supplied by them, should be accounted and paid for under their contract, according to the method of measurement used in ascertaining the amount of masonry as contained in the finished wall, left by the mason or builder. This account stands as follows:

To “rubble masonry” 3,410 11-22 perches at $2, $1.10--$3.10 per perch

To “footings masonry” 1,365 4-22 perches at $2, $3.25--$5.25 per perch

To total

By cash to quarryman

$6,768.12

By cash to appellants

8,733.33--

$15,501.45

To balance

According to this statement, the plaintiffs would be entitled to a judgment against the defendant,...