The Utah Const. Co. v. McIlwee

• Decision Date: 05 March 1928
• Docket Number: 4854
• Court: Idaho Supreme Court
• Parties: THE UTAH CONSTRUCTION COMPANY, a Corporation, Appellant, v. J. A. MCILWEE and RAY C. MCILWEE, Copartners Doing Business Under the Firm Name and Style of J. A. MCILWEE & SONS, Respondents

266 P. 1094

45 Idaho 707

THE UTAH CONSTRUCTION COMPANY, a Corporation, Appellant, v. J. A. MCILWEE and RAY C. MCILWEE, Copartners Doing Business Under the Firm Name and Style of J. A. MCILWEE & SONS, Respondents

No. 4854

Supreme Court of Idaho

March 5, 1928

WRITTEN CONTRACT-MODIFICATION-PAROL EVIDENCE RULE-EXPRESS AND IMPLIED CONTRACT-PROOF-INTERPRETATION OF CONTRACTS-SURROUNDING CIRCUMSTANCES-CONDUCT OF PARTIES.

1. Where contract for construction of a spur railway providing that work was to be completed on or before February 1st in a way that trains might operate over it in safety was not uncertain or ambiguous, court did not err in excluding evidence of prior or contemporaneous oral argreement that provision as to operation of trains applied only to such time as the ground remained frozen and hard.

2. Where construction contract required the work to be speeded so as to complete a spur-track on or before February 1st in a manner that trains could be operated over it in safety, final completion to be made by July 1st, statement of plaintiff's manager that if trains were operated over road before final completion there would be damage which defendants would be expected to pay for did not render defendants liable, since contract contemplated operation of cars over tracks after February 1st.

3. Where contract for construction of a spur-track contemplated that trains would operate over the track in safety before final completion, evidence of added cost of construction because of sinking and settling of roadbed from operation of cars thereon before final completion was immaterial, as respects claim for extra work.

4. Where contractor's claim for added expense of securing shale and rock from sources not contemplated by contract and specifications for building spur-track depended on proof that party ordering it done was defendants' agent, since trial court's finding against plaintiff as to such agency was supported by and not contrary to evidence, it cannot be disturbed.

5. Where construction company agreed to complete spur-track on or before February 1st in way that trains could operate over it in safety, in suit for hauling ore thereon at defendants' request, trial court's finding on conflicting evidence that there was no express contract by defendants to pay for hauling cannot be reversed.

6. Where construction company agreed to complete spur-track on or before February 1st in way that trains might operate thereon in safety, and where their claim for compensation for hauling ore depended on proof of an implied contract court's finding that defendant did not impliedly promise to pay for such hauling, which was not contrary to evidence cannot be disturbed.

7. In action by construction company to enforce lien for work and materials in building a spur-track, in which defendants filed a cross-complaint, and plaintiff thereafter pleaded a counterclaim and cross-complaint for moneys paid in settlement of claims for obstructing a canal, since trial court did not rule at time objection was made to plaintiff's counterclaim and cross-complaint, and having treated matter therein as pleaded and made fact findings thereon, matter alleged therein should be treated as before the court on facts.

8. Rule that surrounding circumstances or evidence of conduct may be looked to in aid of interpretation of contract as constituting interpretation placed thereon by party to arrive at intent is not applicable, unless terms employed are susceptible of more than one meaning and contract is thus uncertain or ambiguous and calls for interpretation.

9. When contract is not uncertain or ambiguous, there is no room for interpretation based on matters outside contract or for importing extraneous matters in interpretation.

10. Ordinarily, contract carrying plans and specifications as part thereof requires construction accordingly, and does not obligate contractor to extra and unforeseen work nor to anticipate injurious results of such construction or to provide against matters not set forth.

11. Construction company building a spur-track according to plans and specifications was entitled to reimbursements for moneys paid in settlement of claims for damages due to obstruction of canal running along railway, where plans and specifications did not require restoration of canal at point of obstruction, and under subsequent contract with defendants, it was entitled to recover amount paid in settlement of damages.

APPEAL from the District Court of the Fifth Judicial District, for Bear Lake County. Hon. Robert M. Terrell, Judge.

Action upon contracts for labor and material, and to foreclose mechanic's lien. Judgment for defendants. Reversed and remanded.

Reversed and remanded with instructions. Costs to appellant.

Story &amp Crow and J. H. Peterson, for Appellant.

The undisputed evidence shows that there was an implied request on the part of the defendants to haul the ore. Defendants knew of the hauling, permitted it and it was for their use and benefit. Under such circumstances, the law implies a request to perform the service. (Hughes v. Dundee Mortgage & Trust Inv. Co., 21 F. 169; Hill v. Carr, 78 N.H. 458, 101 A. 525; Ingram v. Basye, 67 Ore. 257, 135 P. 883; Kiser v. Holladay, 29 Ore. 338, 45 P. 759; Grotjan v. Rice, 124 Wis. 253, 102 N.W. 551; Wojahn v. National Union Bank, 144 Wis. 646, 129 N.W. 1068; Paul v. Wilbur, 189 Mass. 48, 75 N.E. 63; Palmer v. Miller, 19 Ind.App. 624, 49 N.E. 975.)

The court held, but the contract did not clearly show on its face, that plaintiff should not only build the road so as to permit of hauling over the same by February 1st, but should thereafter maintain and restore the road during the period hauling was being conducted. Evidence should have been submitted to show the circumstances existing at the time the contract was entered into, and the conversations of parties with respect to the same. (Suave v. Title Guaranty & Surety Co., 29 Idaho 146, 158 P. 112; State v. Twin Falls L. & W. Co., 21 Idaho 410, 121 P. 1039, L. R. A. 1916F, 236; Schurger v. Mooreman, 20 Idaho 97, Ann. Cas. 1912D, 1114, 117 P. 122, 36 L. R. A., N. S., 313; Harris v. Faris-Kesl Const. Co., 13 Idaho 211, 89 P. 760.)

A construction contractor is not required to do work not shown on the plans and specifications furnished to him and on which his bid was made. (Horgan v. McKenzie, 17 N.Y.S. 174; Phoenix Iron Co. v. The Richmond, 6 Mackey (17 D. C.) 180; Sexton v. Chicago, 107 Ill. 323; Chapman v. Meling, 147 Ill.App. 411.)

Jesse R. S. Budge and Merrill & Merrill, for Respondents.

In Stein v. Fogarty, 4 Idaho 702, 46 P. 681, it is held that in the absence of fraud, accident or mistake, parol evidence of an oral agreement made contemporaneously with the execution of a promissory note cannot be admitted to show that such note, although made payable in money, was by such agreement to be paid in work and labor.

In Milner v. Earl Fruit Co., 40 Idaho 339, 232 P. 581, it is said: "The general rule of law that parol evidence cannot be admitted to alter, contradict, vary, add to or detract from the terms of a written instrument or contract, has so frequently been laid down in text books, encyclopedias and decided cases, that no useful purpose would be served in incorporating at length the discussions therein contained." (First Nat. Bank v. Bews, 5 Idaho 678, 51 P. 777; Newmyer v. Roush, 21 Idaho 106, Ann. Cas. 1913D, 433, 120 P. 464; Payette Nat. Bank v. Ingard, 34 Idaho 295, 200 P. 344; Beebe v. Pioneer Bk. & Tr. Co., 34 Idaho 385, 201 P. 717; Hurt v. Monumental Mercury Min. Co., 35 Idaho 295, 206 P. 184; Page on Contracts, sec. 2152.)

TAYLOR, J. Wm. E. Lee, C. J., Givens and T. Bailey Lee, JJ., and Downing, District Judge, concur. Budge, J., did not sit at the hearing and took no part in the decision.

OPINION

TAYLOR, J.

In October, 1919, plaintiff-appellant, entered into a contract to construct for defendants, for the sum of $ 100,000, a railway about 3.6 miles in length, from Paris, Idaho, to the Western Phosphate Mine, according to plans and specifications of the Oregon Short Line Railroad Company made a part of the contract, the road when completed to be accepted and approved by an engineer of the railway company. Plaintiff's action is to enforce a lien for the value of material, work and services, alleged to be in addition to those required under the contract. Its right to recover is primarily based upon an interpretation of this contract, and the sufficiency of evidence to sustain a contract or contracts alleged to have been made in addition to this one. It contained this clause:

"The work is to be pushed with all possible speed to completion and completed on or before February 1st, 1920, in a way that trains may operate over it in safety, the final completion of the road may be done by them any time before July 1st, 1920."

The $ 100,000 was paid in advance. The road was not completed until some time after February 1st, in a way that trains might operate over it in safety, or at least without causing the settling and sinking of the track, but was finally completed and accepted in August, 1920.

Plaintiff's lien and complaint claimed a number of items of extras. Defendants, by cross-complaint, claimed $ 4,604.45 for ties furnished to plaintiff. To this cross-complaint, plaintiff filed what it termed an answer and counterclaim and cross-complaint. After admitting receipt of the ties, and denying any indebtedness therefor, it alleged, by way of counterclaim and cross-complaint, a claim of $ 4,090.20 under a subsequent agreement with defendants, paid by plaintiff, subsequent to filing its lien and complaint, to certain farmers in settlement of damages suffered by them by obstruction of a canal.

The court disallowed all the claims...