Molyneux v. Twin Falls Canal Company

Decision Date29 June 1934
Docket Number5963
Citation35 P.2d 651,54 Idaho 619
PartiesJ. N. MOLYNEUX, Respondent, v. TWIN FALLS CANAL COMPANY, a Corporation, Appellant
CourtIdaho Supreme Court

CONTRACTS-WRITTEN INSTRUMENTS-CONSTRUCTION-PAROL EVIDENCE-ORAL MODIFICATION - EVIDENCE - INSTRUCTIONS - DAMAGES - BREACH OF CONTRACT-PROSPECTIVE PROFITS-BURDEN OF PROOF-PLEADING-AMENDMENTS.

1. In determining intent of contract, court must examine whole instrument.

2. If meaning is clear and unambiguous, involving no absurdity or contradiction, contract must be enforced according to its terms.

3. Determination of meaning and legal effect of unambiguous written contract is for court.

4. If court cannot determine meaning of written contract from its terms, testimony of parties' intention is admissible; and if evidence is conflicting, question is for jury.

5. In contractor's action on contract to construct drainage tunnel terminable whenever irrigation company deemed sufficient water released, where pleadings raised question whether company could terminate tunnel at any time, parol evidence showing parties' intention held admissible.

6. Court's omission expressly to determine disputed question whether irrigation company, authorized by construction contract to terminate drainage tunnel whenever company deemed sufficient water released, could terminate tunnel at any time without liability to contractor, and omission to submit such question to jury on conflicting evidence of parties' intention, held harmless to company under instruction holding company liable unless bona fide terminating tunnel.

7. Construction contract for drainage tunnel terminable whenever irrigation company deemed sufficient water released held mutually binding, and company, if resuming work after ordering contractor to stop, was obligated to allow contractor to do work unless company previously terminated tunnel in good faith.

8. In action for breach of contract to construct drainage tunnel terminable whenever irrigation company deemed sufficient water released, instruction as whole held not objectionable as inferring that fact that company subsequently continued tunnel conclusively established that company had not terminated tunnel when discharging contractor.

9. In action for breach of contract to construct drainage tunnel terminable whenever irrigation company deemed sufficient water released, fact that company continued tunnel after discharging contractor did not show as matter of law that company had not previously bona fide terminated tunnel, but was fact for jury's consideration on question of termination.

10. In action for breach of contract to construct drainage tunnel terminable whenever irrigation company deemed sufficient water released, whether company terminated tunnel when discharging contractor held for jury.

11. Ordinarily, juries should be instructed that evidence of oral rescission or modification of written contract must be "clear and convincing," or "clear and satisfactory."

12. Where defendant seeks to prove that a written contract was orally modified and rescinded, degree of proof greater than a bare preponderance is required.

13. In action on written construction contract, instruction that evidence of oral modification or rescission must be clear "positive," and "unequivocal" held erroneous because requiring stronger proof than such words as "clear and convincing," or "clear and satisfactory."

14. In action on written contract, instruction that parties' rights depended on terms thereof unless abrogated by mutual agreement sufficiently submitted affirmative defenses that plaintiff voluntarily ceased work and that contract was terminated by mutual consent, although court might more properly have affirmatively instructed jury.

15. In instructing jury concerning issues raised by answer and admissions and affirmative defenses therein, court should also have stated that defendant generally denied all unadmitted allegations of complaint.

16. In action on construction contract authorizing retention of fifteen per cent of amount earned until satisfactory completion, contractor's acceptance of retained amount representing moneys earned and undisputed, did not conclusively establish release of claim for damages for breach, but was fact for jury's consideration on question of abandonment of contract.

17. Whether contractor claiming breach of construction contract intended to abrogate or modify contract held jury question under evidence.

18. In contractor's action for lost profits because of alleged breach of contract to construct tunnel, permitting trial amendment of complaint by increasing alleged length of tunnel con- structed after contractor's discharge and after commencement of suit held not abuse of discretion supplemental complaint being unnecessary since amendment did not allege new or different cause of action (I. C. A., sec 5-814).

19. In contractor's action for lost profits because of alleged breach of contract to construct drainage tunnel to point to be determined bona fide by irrigation company, length of tunnel as extended by company after contractor's discharge held not conclusive on jury in determining point at which company honestly terminated tunnel.

20. Contractor claiming lost profits because of irrigation company's breach of contract to construct drainage tunnel to point to be determined by company could not recover for any portion of tunnel which company, after contractor's discharge, bona fide constructed with contractor's consent to determine costs.

21. Contractor claiming lost profits on contract to construct tunnel held entitled to difference between cost to contractor and contract price on tunnel as extended after contractor's discharge, less reasonable deduction for shorter time engaged and for release from care, trouble risk, and responsibility.

22. Contractor suing for breach of construction contract has burden of proving extent of damages and elements reasonably necessary to establish lost profits.

23. In contractor's action for lost profits because of alleged breach of construction contract, items of supervision or superintendence, moving of equipment, and hazards of work held not necessarily items of contractor's costs under evidence.

APPEAL from the District Court of the Eleventh Judicial District, for Twin Falls County. Chas. F. Koelsch, Presiding Judge.

Appeal from a judgment upon a verdict for $ 19,309.25 for breach of contract and from the order denying the motion for a new trial. Reversed and remanded, with instructions to grant a new trial.

Case remanded. Costs awarded to appellant. Petition for rehearing denied.

James R. Bothwell, Vaughn A. Price, Harry Povey and Edwin Snow, for Appellant.

Under the contract appellant has the absolute right to determine the length of the tunnel, and, therefore, may terminate the contract at will. A termination of the contract by appellant is not a breach of the contract. (Beers v. North Milwaukee Town-Site Co., 93 Wis. 569, 67 N.W. 936; Randall v. Michelin Tire Co., 137 Misc. 570, 244 N.Y.S. 44; Baltimore Humane Impartial Soc. v. Marley, 156 Md. 478, 144 A. 521.)

Resort should first be had to a written instrument; if its meaning is clear it must be enforced according to the plain import of its language. (Meir-Nandorf v. Milner, 34 Idaho 396, 201 P. 720; Hinsch v. Mothorn, 44 Idaho 539, 258 P. 540.)

If there is room for doubt the agreement, objects, purposes, and all extrinsic facts must be considered in determining its true meaning and the intention of the parties. (Caldwell State Bank v. First Nat. Bank, 49 Idaho 110, 286 P. 360; Clarke v. Blackfoot Water Works, 39 Idaho 304, 228 P. 326; Glover v. Spraker, 50 Idaho 16, 292 P. 613.)

Appellant's affirmative defenses were not properly before the jury. The instructions given were erroneous and incomplete. The instructions refused, if given, would have properly submitted the question to the jury.

Also the instructions required appellant to sustain its affirmative defenses by positive and unequivocal evidence which is error. (13 C. J., secs. 779, 780, 986; Webster's New International Dictionary, "Positive"; 23 C. J., sec. 1745; 13 C. J., secs. 593, 601, 952, 972, 973, 986.)

The court permitted respondent to amend to conform to proof over appellant's objection. The ruling was prejudicial and contrary to the rules of pleading. (3 Elliott on Contracts, sec. 2599; 49 C. J., secs. 567, 792; C. S., sec. 6719; I. C. A., sec. 5-814.)

The evidence is insufficient to sustain respondent's burden of proof as to the proper measure of damages. (United States v. Speed, 8 Wall. 77, 19 L.Ed. 449; Harris v. FarisKesl Const. Co., 13 Idaho 211, 89 P. 760; Masterson v. Mayor etc. of City of Brooklyn, 7 Hill (N. Y.), 61, 62, 42 Am. Dec. 38; Hinckley v. Pittsburgh Bessemer Steel Co., 121 U.S. 264, 7 S.Ct. 875, 30 L.Ed. 967; Philadelphia W. & B. R. R. Co. v. Howard, 13 How. 307, 14 L.Ed. 157.)

Walters, Parry & Thoman, for Respondent.

If, considering all parts of the contract, the written instrument is in itself susceptible of a clear and sensible construction, then parol or extrinsic evidence is not admissible even to explain its meaning or determine the construction of the writing. (Milner v. Earl Fruit Co., 40 Idaho 339, 232 P. 581, citing 22 C. J. 1099-1104.)

In terminating the contract without also terminating the tunnel, and without the prior determination that sufficient seepage water had been released by the tunnel, defendant committed a breach of the contract. (McConnell v. Corona City Water Co., 149 Cal. 60, 85 P. 929, 8 L. R. A., N. S., 1171; Anvil Min. Co. v. Humble, 153 U.S. 540, 14 S.Ct. 876, 38 L.Ed. 814; Johnson v. Homestead-Iron Dyke Mines Co., 98 Ore. 318, 193 P. 1036.)

The court correctly instructed the jury...

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