Mobile County v. Linch

• Citation: 73 So. 423,198 Ala. 57
• Decision Date: 30 November 1916
• Docket Number: 1 Div. 900
• Parties: MOBILE COUNTY v. LINCH.
• Court: Supreme Court of Alabama

73 So. 423

198 Ala. 57

MOBILE COUNTY v. LINCH.

1 Div. 900

Supreme Court of Alabama

November 30, 1916

Appeal from Circuit Court, Mobile County; S.B. Browne, Judge.

Assumpsit by E.S. Linch against Mobile County. Judgment for plaintiff and defendant appeals. Affirmed.

Gordon & Edington, of Mobile, for appellant.

Harry T. Smith & Caffey, of Mobile, for appellee.

MAYFIELD J.

Appellee sued appellant county. The complaint was based solely on the common counts, one count being on account stated, and the others, for work and labor done. The case was tried on the general issue, and the trial resulted in a judgment in favor of the appellee for the amount sued for.

The evidence showed without dispute that there was a contract between the parties by which appellee was to grade and improve a certain public highway in Mobile county, and according to certain specifications, the work to be inspected and approved by a civil engineer in the employ of the county. There is likewise no dispute as to the amount which appellee was to receive for the work. Appellee performed his part of the contract in full, and his work was accepted and approved by the county. The payments were to be made in county warrants, and the greater part of the amount was to be paid in county warrants, issued monthly as the work progressed but such monthly payments were never to be in full of the amount then actually due; a certain percentage was to be held back until the work was completed, or until certain conditions precedent were performed. And, according to one theory, the balance was never to be paid by the county, but by certain abutting owners along the improved highway.

The real dispute was whether the balance due appellee was contingent upon the payment by abutting owners, to the county, of certain amounts subscribed by them and agreed to be paid, or whether the appellee should look solely to the abutting owners therefor. This doubt or dispute arises from the uncertainty of the contract between the parties as to the mode and time of the payments agreed on. The result of the case, therefore, chiefly depends upon the construction of the contract.

The uncertainty grows out of some resolutions of the board of revenue and road commissioners, recorded on the minutes of that body, which resolution were made a part of the contract. These provisions were as follows:

"Resolution adopted by the Board.

Minutes of June 30th, 1914.

"Moved that the contract for drainage and curbing be let to E.S. Linch who is the lowest bidder therefor, upon the understanding that he is to be paid in warrants of the county, to the extent of 75% of the work, until the work is completed and the property owners shall have paid for the work as shown by the agreement between the county and said property owners.

"And upon the further distinct understanding that the property owners who have signed, or shall hereafter sign said agreement, shall pay for the property owners who do not agree to bear their proportionate share of the work, provided that no property owner shall be liable for more than one dollar per front foot of his own property.

"Moved further that the president be authorized to sign the contract.

"It is understood by the contractor, evidenced by his acceptance of the contract, that the county shall not be liable for the amounts not paid by any of the abutting property owners, but that he will look to them for same under this contract."

It is contended by appellant: (1) That the county is not liable at all, as for the balance sued for, because it is covered by amounts which "abutting property owners" had failed to pay, and that as to this, appellee had agreed to look to such abutting owners for payment, and not to the county; and (2) that if the county is ever liable to pay the balance, it will be only when all of the abutting owners have paid all they agreed to pay.

The contention of appellee is that the county was to pay each month, as work progressed, 75 per cent., and that the remaining 25 per cent. was to be postponed until the abutting owners paid the amount they agreed to pay for the improvements. We are of the opinion that appellee's interpretation of the contract is correct. We are led to this conclusion largely by the fact that this seems to be the interpretation which the parties themselves, or their authorized agents and officers, placed upon it while the work was progressing, and when the question was presented by the issuance of conditional warrants for 75 per cent. of the amount due, for sewer and curbing work, while unconditional warrants were issued as for 75 per cent. of the culvert work, as for which the abutting owners were not to pay anything to either the county or the contractor. No other interpretation of the contract will accord with the action of all the parties to the contract, during its performance, or with the issuing of warrants in payment of 75 per cent. of the work done, per month, as the work progressed.

It is a sound and well-settled rule of construction of contracts that, in arriving at a proper interpretation, the court should examine the whole instrument with a view of ascertaining and carrying into effect the purpose and object the parties had in view, and thus give some effect to each clause, and reconcile apparent discrepancies, if practicable. Courts will never presume that parties intended to insert in their contracts provisions wholly incompatible and irreconcilable one with another.

The true rule of interpretation of contracts is to make them speak the intention of the parties as at the time they were made. A corollary of this rule is that, where any doubt arises as to the true sense and meaning of the words themselves, or as to their application under the particular circumstances, their import may be shown by parol proof dehors the instrument itself. The contract being complete with or without this phrase, it will support a cause of action; and is not subject to demurrer for uncertainty of meaning of words or phrases which do not render it void. 1 Greenl.Ev. 278; Chambers v. Ringstaff, 69 Ala. 140; Cassells' Mill v. Strater Bros., 166 Ala. 283, 51 So. 969; 7 Mayf.Dig. 170-71.

It is contended by appellant here, and was so contended in the court below, that the minutes of the board were the sole evidence of the contract; and that, as they were in writing, and were the contract, the contract therefore was matter of record, and could not be contradicted or explained by parol proof, nor construed with reference to the conduct or the intention of the parties; and that their acts or words, in the performance of the contract, could not be looked to in determining the meaning of the terms, words, or phrases used in the minutes.

There are several reasons why the strict rules of evidence which forbid the impeachment, contradiction, or explanation of the meaning of certain parts of judicial records by oral evidence, or by the conduct of the parties in reference to them, do not apply to this case. There is inserted in this record much which is not proper matter for judicial records; much of it is gratuitous recital of motions, debates, or suggestions of members, portions of which have no reference to the plaintiff or to his contract. In the next place, in some of the provisions which on their face relate to the contract, the times and mode of payment are conflicting, if not self-contradictory; hence effect could not be given to the literal interpretation of all the provisions; to give effect literally to one, the one insisted upon by appellant, would, of necessity, deny or prevent effect to other provisions equally or more explicit.

Surely, the contract and the record should be construed as a whole, according effect to each provision, if practicable, rather than following literally one which denies effect to others equally as certain and as important.

It is undoubtedly true that if a contract be definite and certain, and be in writing--especially so, and for a stronger reason, when it is made so of record--parol evidence is not admissible to contradict or impeach its provisions; but if it be indefinite or uncertain in its meaning, or there are latent ambiguities, parol proof is admissible and proper, not to contradict or impeach the writing or documentary and record evidence, but to explain the apparent inconsistencies and repugnant provisions, and thus give effect to the writing as a whole. It is a well-recognized law of evidence that a patent ambiguity cannot be cured by oral or extrinsic evidence; but if the ambiguity be latent, the defect may be cured by such evidence. As pointed out by Stone, J., in his valuable opinion in the case of Chambers v. Ringstaff, 69 Ala. 140, there are many instances in which the document in question or the ambiguities contained in it are not referable to either of these two classes, patent and latent; and Justice Stone styled this third class, "exceptional shadings of patent ambiguities." He says:

"They arise, when on mere inspection, there does not appear to be an uncertainty or ambiguity. This frequently grows out of a careless use of language, and sometimes results from the many shades of meaning usage and provincial habit accord to the same word or expression. Out of this has grown a seeming modification of the old rule as to patent ambiguity, which Mr. Justice Story has characterized as an intermediate class of cases, partaking of the nature both of latent and patent ambiguity. That learned jurist, in Peisch v. Dickson, 1 Mason, 9 [Fed.Cas. No. 10,911], says: 'In such a case I should think parol evidence might be admitted, to show the circumstances under which the contract was made, and the subject-matter to which the parties referred.' "

The contract and record in this case...