OPINION
NORTONI, J.
This
is a suit for damages accrued to plaintiff on account of a
breach of contract of sale. Plaintiff recovered and defendant
prosecutes the appeal.
The
material facts and the conclusions of law thereon are clearly
stated and set forth in an opinion of the trial judge, Hon.
Rhodes E. Cave, filed at the time of giving judgment in the
case in the circuit court. We copy this statement of facts
and opinion as accurately reflecting our views on the
questions here. Such statement and opinion are as follows:
"There
is no controversy as to the facts in this case whatever, and
they show that in October, 1911, the defendant by telephone
ordered of plaintiff 320 barrels of linseed oil; that on the
same day plaintiff confirmed this verbal sale by letter to
the defendant, in which the following language is used:
"'We
are pleased to confirm verbal sale made to you to-day of 320
barrels pure linseed oil for delivery in month of
October.' (The italics in the letters and contract
are by the court.)
"Within
two or three days thereafter plaintiff mailed to defendant
the printed form of contract in evidence as exhibit B, and
the same was duly signed by both parties.
"Under
this contract portions of the oil were delivered in tank
wagons or cooperage at various dates during the month of
October, and on October 20 defendant wrote to
plaintiff ordering one tank car of oil under this contract,
as follows:
"'Please
enter our order for immediate shipment for one tank car,
10,000 gallons raw linseed oil, routing same to us care of
the Terminal Railroad Association, Sixteenth street yards,
St. Louis, Missouri. This
shipment to be applied against our contract for October
delivery.'
"And
on the same day plaintiff acknowledged receipt of this order,
using the language,
"'.
. . to be applied against your October contract.
This will go forward to our factory, Minneapolis, Minnesota,
where it will have immediate attention.'
"The
tank car of oil was not shipped from Minneapolis until
October 30.
"On
October 31, defendant wrote and advised plaintiff that
defendant would refuse to receive the tank car shipment of
oil ordered October 20th, unless delivery of same was made
October 31, 1911.
"On
November 1, 1911, plaintiff delivered to defendant bill of
lading for said car, but defendant returned the same on the
same day.
"On
November 6, the tank car arrived in the city of St. Louis and
was ready for delivery to defendant and was tendered to
defendant on the 7th day of November, 1911.
"On
November 9, plaintiff advised defendant that unless said car
was accepted plaintiff would sell the same and hold defendant
liable for any loss occasioned thereby.
"Defendant
having refused to accept said tank car, plaintiff thereafter
sold same for the best price obtainable, to-wit, $ 6868.40,
which said sum was $ 1392.61 less than the price provided for
in the contract. Plaintiff was also put to the expense of
demurrage charges of $ 11 and switching charges of $ 4 on
account of said tank car.
"The real controversy in this case turns upon
the construction of the written contract executed by the
parties, and unless there is some doubt as to its
construction, no reference whatever need be made to the other
facts.
"That
contract, in so far as its provisions are in any wise
material in determining the issues raised, is as follows:
"'The
seller (plaintiff) hereby sells and agrees to deliver and the
buyer (defendant) hereby purchases and agrees to receive 320
barrels . . . of pure linseed oil, for shipment in carload
quantities, as follows, and within ten days of specified
dates:
---
barrels, January;
---
barrels, February, &c.
320
barrels, October,
raw
linseed oil at 82 cents, boiled linseed oil at 83 cents per
gallon, f. o. b. cars or buyer's factory, St. Louis,
Missouri, freight allowed to St. Louis, Missouri; buyer to
furnish specifications for shipment in ample time to
enable seller to execute order within the period or periods
named above. In absence of specifications a carrying
charge . . . as long as the seller shall be willing to carry
the same. . . . Orders for tank cars to be filled by capacity
of car convenient to ship, with minimum of about 5000 gallons
and maximum of about 10,000 gallons. Minnesota State weights
to govern. The whole contract is stated herein.'
"Counsel
agree that in our search for the true intent of the parties
we should look, first, to the contract itself, and if, after
a careful consideration of it and all that appears therefrom,
a reasonable doubt still remains, then, and only then, should
we seek light elsewhere; and in looking to the contract we
should remember that we must look to its each and every
provision and to what may be fairly inferred therefrom, and
should so construe the whole contract as to give some meaning
to each and every part thereof. In a word,
that we should not readily yield to any construction of the
contract which will give to any word, phrase or sentence used
by the parties no meaning or value whatever; but should, on
the other hand, attempt to so harmonize each and every
provision as to give some force and effect to all.
"Looking
to the contract, then, in this light, the crucial question,
as it appears to the court, is, to what do the words of the
contract, 'within ten days of specified dates,'
refer? Do they refer to the dates thereinafter specified,
to-wit, October, or do they refer, as counsel for defendant
contends, to the dates on which the buyer may thereafter
furnish specifications; and if the latter, then of what use
in the contract is the provision that the buyer shall
'furnish specifications in ample time to enable the
seller to execute the order within the period or periods
above named?'
"If
the seller must execute the order within ten days after
specifications are given by the buyer, then the 'in ample
time' provision has no meaning whatever; and to such a
construction we should not, as above stated, yield readily.
"Again,
if the parties had intended the phrase 'within ten days
of specified dates' to refer to the dates on which
specifications were to be given by the buyer, would it not
have been more natural to have said, 'within ten days
after specifications are given or received?'
"Then,
too, the use of the words 'within ten days of specified
dates,' followed by a colon and then by certain
enumerated dates, is just as if the parties had said,
'within ten days of specified dates, as follows,
towit:'
"Could
there be any doubt as to what this phrase refers to, if the
date inserted had been October 31, instead of just
'October?'
"Looking
further to the contract, we find that it is a blank form used
by the seller in all cases whether the buyer
is located in St. Louis or San Francisco, and it is but
reasonable to infer from its provisions that the place from
which the seller is to ship is Minnesota.
"This
being so, and adopting for the time being defendant's
contention that 'execute the order' means delivery in
St. Louis, it is most reasonable that the contract should
provide for a fixed time, to-wit: 'within ten days of
specified dates,' for the execution of the order; and a
variable time, to-wit: 'ample time,' depending on all
the circumstances of each case, for the giving of
specifications by the buyer.
"In
short, if we give to the term 'in ample time,' etc.,
any meaning whatever, it must be, not ten days, but a varying
time; and to adopt defendant's contention that
'within ten days of specified dates' refers to the
dates when specifications are to be given by the buyer,
necessarily robs the 'ample time' provision of all
meaning whatever, and cannot therefore be accepted as a fair
construction of the contract.
"This
contention to the side, the term 'within ten days of
specified dates' can only refer to the date set out in
the contract, to-wit: October, and means, in connection
therewith, that the seller agrees to sell and deliver within
ten days of the specified date, October.
"This
being so, and the tender having been made within ten days of
October, it would be useless to consider the other questions
argued by counsel.
"Upon
consideration of the premises, there being no controversy as
to the amount the plaintiff is entitled to recover, if at
all, judgment will be for the plaintiff in the amount sued
for."
In
addition to what Judge CAVE has so well said, we will add: It
appearing that the contract is not ambiguous on its face, the
court very properly excluded from consideration the evidence
offered with a view of eliminating the words, "and
within ten days of specified dates," so
as to amend it, requiring the delivery to be made during the
month of October.
Touching
the suggestion that a date means a point of time, it is to be
said that, though it means a given day of a given month of a
given year, we are not concerned here so much with the
technical import of the word as with the true intention of
the parties ascertained from the entire instrument.
If this appears clear--that is, not shrouded in ambiguity--it
is improper to look to extrinsic evidence for aid in
interpretation. It appears to be entirely clear to us that
the parties employed the word "October" in the
sense of and as the date when delivery was to be made and
then...
