J. W. Reedy Elevator & Manufacturing Co. v. Mertz & Hale
| Decision Date | 25 April 1904 |
| Citation | 80 S.W. 684,107 Mo.App. 28 |
| Parties | J. W. REEDY ELEVATOR & MANUFACTURING COMPANY, Appellant, v. MERTZ & HALE, Respondents |
| Court | Kansas Court of Appeals |
Appeal from Benton Circuit Court.--Hon. W. W. Graves, Judge.
Judgment affirmed.
H. T Williams for appellant.
(1) When the provision is read in the light of the whole contract and the purpose for which a passenger elevator is made it is not ambiguous, and no issue of fact as to the interpretation thereof should have been submitted to the jury. Burress v. Blair, 61 Mo. 175; Chapman v. Railroad, 114 Mo. 542; Fruin v. Railway, 89 Mo. 397; Brannock v. Elmore, 114 Mo. 55; State v. Lafaivre, 53 Mo. 470; Miller v. Dunlap, 22 Mo.App. 97; Brooks v. Ins. Co., 11 Mo.App. 350; Bishop Con., sec. 377 secs. 382, 422; 2 Wharton Con., sec. 658. (2) There is nothing doubtful or ambiguous or obscure in the words shock and jar used in the contract. They are plain, simple untechnical words used in an elevator contract. They relate to the elevator, not to the waterworks. If the court had read and looked to the terms of the contract itself for the application of the words the impossibility of applying them to anything outside the elevator would have been apparent. They could not become doubtful except by considering outside matters. Dewtman v. Kilpatrick, 46 Mo.App. 624; 3 Pat. , Dig., 3020, par. 144; Lancaster v. Ins. Co., 92 Mo. 460; Ittner v. Music Hall Assn., 97 Mo. 561. (3) It is common knowledge that the elevator proper is the car which carries the passengers. The whole contract speaks with reference to results to be obtained in its operation. Dewtman v. Kilpatrick, 46 Mo.App. 624; Elect Co. v. Bry, 88 Mo.App. 135. (4) The contract sued on is complete upon its face; it demonstrates its entirety by detailing specifically what each party is to do. In this condition it was signed and accepted by both parties, it is therefore conclusive on both parties alike. Williams v. Stifel, 64 Mo.App. 138; 2 Pattison's Dig., 1173, par. 1935 and 1936; Davis v. Scovern, 130 Mo. 303; 1 Greenleaf, sec. 275; Boyd v. Paul, 125 Mo. 9; Perkins v. Bakrow, 45 Mo.App. 248; Bank v. Cushman, 66 Mo.App. 102; Morgan v. Porter, 103 Mo. 35; 1 Greenleaf, sec. 275; Pugh v. Ayers, 47 Mo.App. 590.
John H. Bothwell and Sangree & Lamm for respondents.
(1) The controlling canon of construction of contracts and other instruments of writing, which may be obscure or susceptible to more than one meaning, is to read the intent of the contracting parties by the light of the circumstances which surrounded them and attended the use of the words and phrases in question. To this end, the situation of the parties, their relation to each other, what was said and done, and the purpose to be attained will be considered. The court should place itself as nearly as possible in the shoes of the parties to the contract. Newberry v. Durand, 87 Mo.App. 290; Ellis v. Harrison, 104 Mo. 270; Dobbins v. Edmonds, 18 Mo.App. 307; Carr v. Lackland, 112 Mo. 456; Lumber Co. v. Warner, 93 Mo. 374; Long v. Timms, 107 Mo. 512; Walsh v. Hill, 38 Cal. 481; Foster v. McGraw, 64 Pa. St. 464; Musgat v. Pumpelly, 46 Wis. 660; Lancey v. Ins. Co., 56 Me. 562. (2) Oral evidence is always admissible, not to contradict, take from or add to, but, when ambiguity or uncertainty exists, to explain and ascertain the true meaning of the terms of a written contract, and to aid in its construction. In such cases it is admissible to show not only the surrounding circumstances and the situation of the parties, but their relation to each other and to the subject-matter of the agreement, as well as the object and purpose of both parties in entering into the agreement, as avowed at the time it was prepared and executed. See foregoing authorities, also, West v. Smith, 101 U.S. 263, 25 Law Ed. 809; Stoops v. Smith, 100 Mass. 63; Brown v. Fales, 139 Mass. 26; 1 Greenleaf on Ev. (15 Ed.), sec. 286 and authorities cited under note a. (3) The terms of the contract about shock and jar being of uncertain application by the dry letter of the contract, the court did right in permitting extrinsic evidence to throw light on the meaning of its terms as understood at the time, and did right in submitting the issue to the jury in a hypothetical instruction. Newberry v. Durand, 87 Mo.App. 290; Wilcox v. Baer, 85 Mo.App. 587; Deutman v. Kilpatrick, 46 Mo.App. 624.
Plaintiff brought this action for the contract price of a passenger elevator which it furnished and put into defendants' building in the city of Sedalia. Defendants made claim that the elevator did not meet the terms of the contract and was wholly useless to them. They also set up a counterclaim arising out of expense in getting the building ready for installing the elevator, etc. The judgment in the trial court was against the plaintiff and in favor of defendants on the counterclaim in the sum of two hundred and sixty dollars. Plaintiff thereupon perfected an appeal to this court.
Each party to the controversy has presented a lengthy statement, involving much that does not concern the merits of the controversy at its present stage. These statements disclose a wide difference between them as to matters said to be of record, as well as other matters not necessary to a disposition of the appeal. Defendants point out the failure of plaintiff to except to the action of the court on the instructions, as shown by its abstract. Plaintiff then, in a "reply to defendants' counter abstract and brief," cites the bill of exceptions itself to show that it did except to the rulings of the court on the instructions. But the appeal is by what is known as the short form and we have no access to the bill of exceptions. It is especially provided by section 813, Revised Statutes 1899, that if the appellant is dissatisfied with the respondents' additional abstract he shall specify his objections thereto, in writing, and file the same with the clerk of the appellate court, and thereupon the clerk shall order a certified transcript of the part of the record in dispute. No such order was asked of the clerk and we must take the abstract made by plaintiff as we find it.
But passing that by and looking into the objection to the instructions given by the court of its own motion, we find that they are not subject to criticism. The written contract contained the following provision:
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