Myers Bros. v. Hager

• Decision Date: 04 November 1936
• Parties: Myers Bros. v. Hager.
• Court: United States State Supreme Court — District of Kentucky

266 Ky. 3

Myers Bros. v. Hager.

Court of Appeals of Kentucky.

Decided November 4, 1936.

1. Sales. — Fact that federal requirements, imposed after contract for delivery of crushed limestone meeting state highway specifications and screening meeting specifications for class A concrete, prohibited use of screening on federal job on which purchaser of limestone and screening was engaged, did not relieve parties of their contractual obligations.

2. Contracts. — In determining whether a contract shall be treated as severable or as an entirety, intention of parties will control, which intention must be determined by fair construction of the contract.

3. Contracts. — Where plain language of contract does not force a contrary construction, contract will be held severable in order

that the intention of the parties may be carried out as far as possible.

4. Contracts. — In construing contract, court must consider all of its language, as well as subject-matter with which it deals, in light of circumstances accompanying parties at its execution.

5. Contracts. — Court must construe contract so as to give it such effect, and none other, as the parties to it intended at time it was executed.

6. Evidence. — Parol evidence of accompanying circumstances is admissible for purpose of construing contract only so far as it gives effect to contract that parties to it intended it should have at time it was executed.

7. Sales. — Portion of contract for sale and delivery of crushed limestone, which provided for delivery of coarse aggregate meeting state highway specifications, held not separable from provisions relating to delivery of fine aggregate meeting specifications for class A concrete.

8. Sales. — Evidence held to sustain judgment for seller under contract for sale and delivery of crushed limestone on ground screening delivered met highway department's specifications as required by contract.

Appeal from Franklin Circuit Court.

WOODWARD, DAWSON & HOBSON for appellant.

CLIFFORD E. SMITH for appellee.

OPINION OF THE COURT BY JUDGE RICHARDSON.

Affirming.

In October, 1932, Myers Brothers, a partnership, of Campbellsburg, Ind., and Arch Hager, Nicholasville, Ky., entered into a written contract by the terms of which Hager agreed to crush and deliver into a bin approximately 2,700 cubic yards of crushed limestone, meeting the 1932 State Highway specifications for coarse aggregate, for which Myers Brothers agreed to pay him $1.50 per cubic yard. Myers Brothers further agreed to pay him $1.75 per cubic yard for any fine aggregate in the bin, meeting the specifications for class A concrete, "the fine aggregate to the approximately seven hundred [700] yards." The parties to the contract agreed that Myers Brothers were to pay these prices every thirty days to D.L. Walker & Co., Lexington, Ky.

At the time this contract was entered into, Hager's crushing machinery was in Barren county, Ky., and the rock to be crushed was to be used in Pulaski county, Ky., which necessitated the moving of his machinery to Pulaski county.

The fine aggregate mentioned in the contract was a by-product of the manufacturing of the coarse aggregate; that is, as the coarse aggregate was manufactured, the fine aggregate was produced by the operation of the machinery. The latter was separated by the use of a special section of a sieve or screen attached to the machinery and operated as the coarse aggregate was manufactured. There was no additional cost to Hager in the crushing of the coarse aggregate, to produce the fine aggregate, except the cost of the screen or sieve that was put in for that purpose, and the cost of piling it to itself at the plant.

After Hager's machinery had been operated a few days, the resident engineer of the State Highway Department made a field test of the fine aggregate when he determined it did not check with the standard specifications of the 1932 State Highway Department for class A concrete. Of this fact he advised Hager's foreman on the job. About the date of his field test, the federal engineer informed the parties concerned that "the federal requirements that had just been passed out to them would prohibit the use of limestone screening on a federal job, and for that reason, could not use any more" limestone screening. Thereafter, the use of limestone screening — the fine aggregate mentioned in Myers Brothers and Hager's contract — was discontinued. This fact did not relieve Myers Brothers and Hager of their contract.

When Hager began to manufacture the coarse and fine aggregate, a Mr. Cheek, the foreman of Myers Brothers, directed the foreman of Hager to separate the fine aggregate and "dump it into stock piles" to itself, "about fifty yards from the plant," which was accordingly done as it was manufactured. Thereafter, Cheek, for Myers Brothers, hauled part of it away.

After the resident engineer imparted to the foreman of Hager that according to his field test, the fine aggregate would not meet the requirements of the 1932 specifications of the highway department, Hager detached the sieve or screen that was being used at that time to separate the fine aggregate, removed it, and secured another that would comply with the field test of the resident engineer as the information thereof was given to Hager's foreman....