Leonard v. Atkinson

• Decision Date: 14 December 1925
• Docket Number: 11880.
• Citation: 130 S.E. 755,133 S.C. 249
• Parties: LEONARD v. ATKINSON.
• Court: South Carolina Supreme Court

130 S.E. 755

133 S.C. 249

LEONARD v. ATKINSON.

No. 11880.

Supreme Court of South Carolina

December 14, 1925

Appeal from Common Pleas Circuit Court of Sumter County; F. P McGowan, Special Judge.

Proceeding for foreclosure of mechanic's lien by S. S. Leonard against Christopher Atkinson. Verdict for plaintiff, and defendant appeals. Reversed.

L. D Jennings, of Sumter, for appellant.

Epps & Levy, of Sumter, for respondent.

PURDY A. A. J.

This was a proceeding for the foreclosure of a builder's lien and came on for trial in Sumter county before Hon. F. P. McGowan, special judge, and a jury. A verdict was returned for the plaintiff in the sum of $500, and the defendant appealed.

The controversy grew out of a contract which the plaintiff-respondent had with the defendant-appellant for the erection of a storehouse in the city of Sumter. It will not be necessary to set out the contract at length. The following are some of its provisions which are necessary for a right understanding of the case:

"Article I. The contractor shall and will provide all materials and perform all the work for the erection and completion of a brick building to be situated on East Hampton Ave., Sumter, S.C. Except such materials mentioned in the specifications which the owner agrees to furnish, as shown on the drawings and described in the specifications prepared by J. H. Johnson, architect, which drawings and specifications are identified by the signatures of the parties hereto, and become hereby a part of this contract.

Article VI. The contractor shall complete the several portions, and the whole of the work comprehended in this agreement by and at the time or times hereinafter stated, to wit: The building shall be completed in ninety days from the date of this contract. And for each and every day the building remains uncompleted after the ninety days, the contractor shall pay the owner the sum of ten ($10.00) dollars per day as a rental fee.

Article VII. Should the contractor be delayed in the prosecution or completion of the work by the act, neglect or default of the owner, or the architect, or of any other contractor employed by the owner upon the work, or by any damage caused by fire or other casualty for which the contractor is not responsible, or by combined action of workmen in no wise caused by or resulting from default or collusion on the part of the contractor, then the time herein fixed for the completion of the work shall be extended for a period equivalent to the time lost by reason of any or all the causes aforesaid, which extended period shall be determined and fixed by the architect; but no such allowance shall be made unless a claim therefor is presented in writing to the architect within forty-eight hours of the occurrence of such delay."

The contract is dated June 6, 1919. The following letter was put in evidence:

"Bid.

Sumter, S.C. June 6th, 1919.

Mr. J. Herbert Johnson, Architect, City.--Dear Sir: I will build store building fronting on Hampton Ave., City of Sumter as per plans furnished by you drawn for Mr. C. Atkinson of Columbia, S. C., for thirteen thousand one hundred and thirty one ($13,131.00) dollars. Making walls 17"' thick 16' in height, and increase size of foundation 36"' at botton, 24"' at top, 20"' in height, one part Portland cement, two parts sand and five parts broken stone for the concrete mixture for foundation. Time to complete ninety (90) working days.

Inclose certified check one hundred ($100.00) dollars as required with bid.

Respectfully, S. S. Leonard."

It will be seen that the letter and the contract bear the same date.

There are eight exceptions. The first exception alleges error in allowing the plaintiff to introduce testimony as to the meaning of the term "ninety days" used in the written contract between the parties, the defendant contending that the expression "ninety days" is unambiguous and well understood, and that it must be construed in accordance with its accepted meaning. By referring to the contract, it will be seen that the letter is not made a part of it, nor is the term "working days" used in the contract, but that this expression is used: "The building shall be completed in ninety days from the date of this contract."

While there would be a very strong reason to assume that the plaintiff intended to contract as is set forth in his letter, on the other hand, alterations in bids are frequently made, and the terms of the offer are varied, and a contract follows, with such variations. Since there is not any ambiguity in the terms of the contract, it must be assumed that the parties did vary the terms of the bid, for such is the effect of the writing to which they both assented by signing it, and, there being no ambiguity in the use of the terms "ninety days" as is commonly understood, both parties are bound by it, and there was error on the part of his honor in admitting testimony by way of explanation of this term.

In one form or another, the...