McArthy v. McArthur

• Decision Date: 11 May 1901
• Citation: 63 S.W. 56,69 Ark. 313
• Parties: MCARTHY v. MCARTHUR
• Court: Arkansas Supreme Court

63 S.W. 56

69 Ark. 313

MCARTHY v. MCARTHUR

Supreme Court of Arkansas

May 11, 1901

Appeal from Faulkner Circuit Court GEORGE M. CHAPLINE, Judge.

Reversed and remanded for new trial.

J. W House, for appellants.

Parol evidence is always admissible to show how the measurement should be made. 49 N.Y. 64; 9 Gray, 401; 15 Ohio St. 179; 2 Zabriskie, 22 N.J.L. 165; 9 Wend. 346; 15 M. & W. 737. Evidence of usage is received, as any other parol evidence when a written contract is under consideration. Starkie, Ev 637-710; 3 Green. Ev. § 276; 69 Am. Dec. 298; 1 Green. Ev. § 292; 18 Mo. 509; 81 Mo. 37; 70 Md. 124; 79 Mich. 307. It was error to exclude the depositions of Dan Carey, Thos. Welsch and Geo. K. McCormack. 86 Ga. 408; 23 Me. 90; 6 Porter (Ala.), 123; 19 Wend. 386; 138 Mass. 375; 43 Am. St. Rep. 870; 106 Ind. 572; 46 Ark. 210; 46 Ark. 222; 56 Ark. 55; 12 N.Y. 40; 114 N.Y. 190; 19 Ark. 276. A general custom not only enters into the contract, but is binding upon both parties. 133 Pa.St. 241; 44 Barb. 541; Clark, Cont. 580; 2 Pars. Cont. 652-655; 3 Ala. 590; 13 Peters, 89; 54 N.Y. 357; 1 Beach, Cont. § 714-15-34; 2 Conn. 69; 12 Wend. 566; 20 Am. Dec. 424; 8 Serg. & R. 533; 81 Mo. 37; 59 Am. Rep. 214; 5 Am. Rep. 241. When a general custom is established, both parties are presumed to have contracted with reference to it. 34 Am. St. Rep. 350; 48 Am. St. Rep. 140; 130 Ill. 73; 41 Minn. 105; 62 Ark. 33. Evidence is admissible to explain the terms of a contract as applied to particular work to be performed. 7 Met. 354; 2 Cush. 271; 100 Mass. 63; 100 Mass. 518; 37 Mo. 313; 27 Vt. 79; 5 Am. Rep. note 241. Conversations, declarations and acts of parties to a contract may be given in evidence to explain the terms thereof. 22 Vt. 160; 1 Starkie, 86; 1 Story (Mass.), 574; 1 Comstock, 96; 92 N.Y. 529; 10 Bosw. (N. Y.), 433; 13 N.Y. 569; 41 N.Y. 644. The plaintiff is estopped from objecting to evidence to prove a general custom, they having first introduced it. 106 Md. 572; 94 Md. 450; 3 Dana (Ky.), 41; 20 Ala. 65; 28 Ala. 601; 29 Ala. 62; 36 Ala. 525; 20 Ohio St. 516; 54 Ark. 25.

O. L. Miles, Bolton & Young and Ratcliffe & Fletcher, for appellees.

Extraneous evidence is not admissible for purpose of adding more stipulations to a contract. 13 L. R. A. 440; 23 How. 49; 1 Wall. 456; 10 Wall. 589; 20 Wall. 488; 101 U.S. 686; 16 S.W. 172. Custom and usage are resorted to only to ascertain the meaning of the parties. 112 N.Y. 530; 14 Am. Rep. 230; 78 F. 151; 95 Va. 50; 83 N.Y. 1073; 30 Iowa 205; 36 Iowa 623; 96 N.Y. 522; 134 U.S. 306; 10 Allen, 305313. Appellants should have pleaded any custom which they contend was a part and at variance with the contract. 76 Iowa 629; 2 L. R. A. 709. The terms of a written contract cannot be varied by proof of what was said. 46 Ark. 226; 13 Wall. 363 110 U.S. 499. The proof of any usage, if admissible at all, must be of a uniform and general one, presumably known to the parties. 75 N.Y. 65; 39 Ark. 283; 91 Me. 24. No lien could exist upon the right of way for any work that McArthur or his laborers did. 65 Ark. 183.

J. W. House, for appellants, in reply.

Custom need not be averred. 46 Iowa 433; 53 Iowa 542; 12 Iowa 32; 15 How. 539; 10 Am. St. Rep. 669; 87 N.C. 9. All persons are presumed to contract with reference to a general custom, and the same need not be pleaded. 15 Ohio St. 179; Lawson, Usage & Custom, 3-112; Clarke, Usage & Custom, 210; Abbot's N. C. (N. Y.), 471; 7 Hun, 482; 49 N.Y. 641; 51 N.Y. 641; 57 N.Y. 651; 58 N.Y. 373.

BATTLE J., WOOD, J. absent.

OPINION

BATTLE, J.

J. S. McArthur and Wood Rainwater brought an action against J. H. McCarthy and George Reichardt, partners doing business under the firm name and style of McCarthy & Reichardt, upon a contract in the words and figures following:

"Little Rock, Ark., November 29, 1898.

"Memorandum: It is agreed that James S. McArthur is to have the clearing of the right of way, subject to all conditions named in the Choctaw & Memphis specifications. He is to do 20 miles or more as hereafter agreed upon, and to work at such points as is necessary from time to time, for which we agree to pay $ 12 per acre. * * * No work will be estimated or paid for that is not in strict conformity to the requirements of the Choctaw & Memphis railroad specifications.

(Signed)

"J. S. McARTHUR,

"MCCARTHY & REICHARDT."

They alleged in their complaint that McCarthy & Reichardt and McArthur selected the 20 miles of the right of way of the Choctaw & Memphis Railroad Company which was to be cleared by McArthur under the contract, and that McArthur at once entered upon the work of clearing the said 20 miles of right of way, and cleared the same to the extent of 12 miles, in accordance with his contract, amounting to 144 acres, of the value of $ 1,728, of which $ 300 have been paid, and that there still remain due and unpaid $ 1,428.

McCarthy & Reichardt, answering, denied that he (McArthur) cleared 144 acres, and alleged that he cleared only 59.39 acres, for which they agreed to pay him at the rate of $ 12 per acre, making the sum of $ 644.68, and that they had paid him the sum of $ 300.

The jury that tried the issues in the action returned a verdict in favor of the plaintiffs for $ 1,031; and the defendants appealed.

The amount due the appellees for the work done depends upon the meaning of the words and figures, "$ 12 per acre" in the contract sued on. It appears from the evidence adduced in the trial in this action that a large portion of the right of way which McArthur claims to have cleared passed through farms or open fields, where there was no or very little clearing to do, and that in many places in such farms or open fields he cut only an occasional tree or stump, and in some places did nothing. Appellees contend that they are entitled, for the work done by McArthur, to $ 12 per acre for the entire area covered by the right of way, without regard to the amount of work done in such farms or open fields; and appellants contend that appellees were entitled to $ 12 for each acre cleared where the forest had been undisturbed, and for the work done in farms and open fields in clearing the right of way they were entitled to the proportion of $ 12 that such work bore to that required to be performed in clearing the right of way where the forest was undisturbed.

Appellants offered evidence in the trial, in support of their contention, to prove that it was the general custom in this state to pay for work done in clearing the right of way for railroads through farms and open fields the proportion of the contract price that such work bears to the work to be done in clearing the right of way through the forest. To illustrate: Suppose the contract price was $ 40 an acre, and that the work of clearing the right of way through farms and open fields was one-tenth of that done in clearing the same through the forest, $ 4 would be the price paid for the work done in the farms and fields, according to the custom. They offered to prove that this custom was in existence at the time the contract sued on was entered into, and had been for many years prior thereto, in this state and elsewhere. To the admission of this evidence the appellees interposed a general objection. The ground upon which the objection was based is not stated in the record, and we can consider it only as to the competency of the evidence. Railway Co. v. Murphy, 60 Ark. 333. The court sustained the objection, and refused to allow the evidence to be adduced, saying: "This is a suit upon a written contract. The price of the labor is fixed in the contract, and also the character of the labor to be done or performed is set out in the contract. Any extra or additional labor is not mentioned, and the court holds that custom and usage have no place in this suit upon this contract."

The contract in question is not entirely free from ambiguity. Appellants agreed to pay McArthur $ 12 per acre for clearing the right of way for 20 miles. Does it mean that $ 12 an acre shall be paid for the acres actually cleared, or that the 20 miles, when entirely cleared, shall be paid for according to the number of acres contained in the same? The 20 miles is not specified in the contract, but was to be thereafter "agreed upon." Either construction can reasonably be placed upon the contract. Was the excluded evidence admissible?

In speaking of usages and trade, Greenleaf says: "Their true office is to interpret the otherwise indeterminate intentions of parties, and to ascertain the nature of their contracts, arising not from express stipulation, but from mere implications and presumptions, and acts of doubtful and equivocal character, and to fix and explain the meaning of words and expressions of doubtful and various senses." 2 Greenleaf, Evidence, § 251. Again he says: "But though usage, may be admissible to explain what is doubtful, it is not admissible to contradict what, is plain." Id. § 292.

In Oelricks v. Ford, 64 U.S. 49, 23 HOW 49, 16 L.Ed. 534 it is said: "This proof is admissible in the absence of express stipulations, or where the meaning of the parties is uncertain upon the language used, and where the usage of the trade to which it was made may afford explanation, and supply deficiencies in the instrument. Technical, local, or doubtful words may be thus explained. So where stipulations in the contract refer to matters outside of the instrument, parol proof of extraneous facts may be necessary to interpret their meaning. As a general rule, there must be ambiguity or uncertainty upon the face of the written instrument, arising out of the terms used by the parties, in order to justify the extraneous evidence; and, when admissible, it must be limited in its effect to the clearing up of the obscurity. It is...