Thornton Const. Co. v. Mackinac Aggregates Corp.

• Decision Date: 18 March 1968
• Docket Number: Docket No. 3164,No. 3,3
• Citation: 157 N.W.2d 456,9 Mich.App. 467
• Parties: THORNTON CONSTRUCTION COMPANY, Inc., a Michigan corporation, Plaintiff, Cross-Defendant, Appellee, v. MACKINAC AGGREGATES CORPORATION, a Michigan corporation, Defendant, Cross- Plaintiff, Appellant
• Court: Court of Appeal of Michigan — District of US

Page 456

157 N.W.2d 456

9 Mich.App. 467

THORNTON CONSTRUCTION COMPANY, Inc., a Michigan corporation Plaintiff, Cross-Defendant, Appellee, v. MACKINAC AGGREGATES CORPORATION, a Michigan corporation Defendant, Cross- Plaintiff, Appellant.

Docket No. 3164.

Court of Appeals of Michigan, Division No. 3.

March 18, 1968.

Released for Publication April 5, 1968.

Rehearing Denied April 25, 1968.

Prentiss M. Brown, Jr., Brown & Brown, St. Ignace, for appellant.

Norman McLean, Houghton, for appellee.

Before FITZGERALD, P.J., and BURNS and HOLBROOK, JJ.

BURNS, Judge.

Defendant appeals a judgment of the circuit court which awarded plaintiff damages for breach of contract and only awarded defendant part of its counterclaim.

On September 22, 1962, the disputing parties in this case executed a written contract wherein Mackinac Aggregates Corporation (Mackinac) granted Thornton Construction Company (Thornton) permission to remove from defendant's Romano pit 'all of the concrete paving aggregates required for the I--75 described as project No. BI 49025 E 18 RN and C19 RN.' After taking approximately one half of the aggregates in the fall of 1962, Thornton refused to remove the remainder of the sand and gravel in 1963 until the paver, Pierson Construction Company, paid on its account with plaintiff and designated a delivery point. Defendant allegedly considered Thornton's action as a repudiation of the contract and sold the Romano pit equipment on June 14, 1963, thereby rendering plaintiff's performance impossible and forcing plaintiff to use other sources. Plaintiff sued for breach of contract and defendant counterclaimed. A nonjury trial resulted in a judgment for plaintiff which was substantially offset because of plaintiff's failure to replace defendant's stockpile of aggregates.

Defendant appeals from the trial judge's denial of its motion for a new trial and raises the following questions:

'1. Was there a repudiation of the contract by Thornton?

'2. Were there legally sufficient proofs to justify the $20,000 awarded to plaintiff?'

The repudiation argument is predicated upon the existence of a time provision which defendant sought to establish by parol evidence. Defendant's witnesses testified that it was understood that one half of the job was to be done in the fall of 1962 and one half was to be done in the spring of 1963 as soon as the weather permitted. This alleged agreement was denied by plaintiff's witnesses. The contract itself is silent as to the time of performance by plaintiff.

'When a written contract is silent as to time of performance, a reasonable time is to be presumed without reference to parol evidence.' Brady v. Central Excavators, Inc. (1947), 316 Mich. 594, 607, 25 N.W.2d 630, 635, and authorities therein cited. Since the parol evidence rule is a rule of substantive law as well as a rule of evidence (Salzman v. Maldaver (1946), 315 Mich. 403, 24 N.W.2d 161, 168 A.L.R. 381), we conclude that the parol evidence in this case must be ignored as having no probative value even though it was admitted without objection. See Williston on Contracts, 3d ed, § 631.

What constitutes a reasonable time under the terms and surrounding circumstances of a contract is a question of fact. Reinforced Concrete Pipe Co. v. Boyes (1914), 180 Mich. 609, 616, 147 N.W. 577. Although Thornton's immediate need for aggregates suggested a sense of emergency at the time of executing the contract, the trial judge properly considered the contract and the nature of the construction industry as the best indicia of reasonableness. The completion date for the highway project referred to in the contract was July 15, 1963. Defendant had also bid on this project and was, therefore, familiar with this date. The trial court found that 'Defendant also was aware that in any of such road contracts that there might be extensions and delays.' Inasmuch as defendant drafted the contract in question, it was easily within its province to include a time of the essence clause (if such a clause could be agreed upon), but not having done so, the absence of a time provision militates against defendant's position.

In conclusion the trial court found as fact:

'The action of plaintiff in delaying production of aggregates to force Pierson to make payments were all within the reasonable time limitation as provided by the terms of the contract.'

'Findings of fact shall not be set aside unless clearly...