Vaughan v. P. J. McInerney & Co.

• Decision Date: 01 March 1943
• Docket Number: 6584.
• Citation: 12 So.2d 516
• Court: Court of Appeal of Louisiana — District of US
• Parties: VAUGHAN v. P. J. MCINERNEY & CO. ET AL.

12 So.2d 516

VAUGHAN v. P. J. MCINERNEY & CO. ET AL.

No. 6584.

Court of Appeals of Louisiana, Second Circuit

March 1, 1943

L C. Blanchard, of Shreveport, and A. S. Drew, of Minden, for appellants.

Campbell & Campbell, of Minden, for appellee.

HARDY, Judge.

This is a suit in which plaintiff claims balance due under the terms of a contract dated September 30, 1941.

The facts show that plaintiff, owner of a dragline, by letter of date September 30, 1941, directed to P. J. McInerney & Company of Shreveport, made a proposal with reference to loading gravel in trucks at defendant's gravel pit near Minden which proposal was accepted for the P. J. McInerney &amp Company by P. J. McInerney.

Between the dates of October 9th and November 19th, 1941, both inclusive plaintiff loaded 14,028 cubic yards of gravel, for which he was paid the sum of twelve cents per cubic yard, in accordance with the provisions of the contract, amounting to $1,683.36. In this suit plaintiff claims a balance of $908.64 from the defendant on the basis of a minimum guaranty under the contract, which he contends was not fulfilled by the defendant.

The principal defenses asserted, in addition to general denial of plaintiff's contentions, are that plaintiff's equipment was not satisfactory and could not perform the work demanded; that the machine was not properly equipped for the performance of night work; that the operator of plaintiff's machine was inefficient; that plaintiff was charged with the duty of maintaining roads, and that his failure to comply with this obligation resulted in loss of time, and that these were the sole and only causes of the failure of plaintiff to move a greater amount of gravel than was actually handled during the period referred to.

A careful examination of the record convinces us that the decision in this case must turn upon interpretation of the contract between the parties, which contract, in words and figures, reads as follows, to-wit:

"Ruston, La. 9-30-41.

"P. J. McInerney Co.,

"Shreveport, Louisiana

"Gentlemen:

"Confirming verbal agreement of today with your Mr. Kilpatrick in Re loading gravel in trucks at your pit near Minden; I agree to furnish my model 25 Northwest dragline equipped with 1 Cu. Yd. bucket, together with competent operator and oiler and such supplies and replacements as may be necessary, and to load pit run gravel from your pit into trucks for the sum of $0.12 (twelve cents) per cubic yard truck measure at the pit. I agree to carry compensation insurance for my employees and to transport the dragline to the work and away from it at my expense. It is understood that my sole and only obligation for the above compensation are as stated.

"The amount of gravel loaded by the machine is to be checked daily and a ticket issued by your representative showing the amount. Payment to me is to be made in full on the first and fifteenth of each month for the amounts so shown at the above price. In case payment is not so made, you agree that this contract shall constitute and assignment to me of any amount due you for gravel in sufficient amount to pay what is due me.

"You agree to furnish sufficient trucks and all other hauling facilities necessary so that the dragline may operate at a minimum of eighty Cu. Yd. per hour when working and that the minimum amount of yardage to be loaded by the machine in any given month shall be 10,000 Cu. Yds. The minimum monthly yardage shall not apply when weather conditions prevent working for fifteen days or more per month.

"In case you should want to use the machine for stripping or other work besides loading at the pit an hourly price of $8.00 per hour for machine personnel and supplies is to be paid.

"If you should want to move the machine to other pits you may do so, but my consent in writing must first be obtained; You are to pay costs of transportation to other location and back.

"It is agreed that this machine shall be operated under your supervision and according to your instructions and that in case it is lost, destroyed or rendered unfit for further service while on your work, the sum of $8500 (Eight Thousand five hundred dollars) is to be paid as liquidated damages.

"In case you have no work for the machine but want it to remain at the pit in readiness for service, a ready to serve charge of $75 per week for a period of not longer than four weeks is agreed on. (This does not apply to times of delay due to weather.

"It is now my understanding that you now have contracts for gravel and that the machine will be immediately put to work when it is delivered on or before Oct-6-41. If for any reason due to fault or failure on your part this is not done, it is agreed the ready to serve clause above shall apply until work is started.

"It is agreed that unless the conditions as above stated are violated, this machine will remain on the above work until P. J. McInerney Co. complete their contracts for furnishing gravel from this pit.

"Signed C. B. Vaughan

"Accepted

"P. J. McInerey Co.

"by P. J. McInerney"

Before proceeding with a discussion of the interpretation of the contract provision in dispute, we will dispose of the other issues raised in defendant's answer.

Defendant has failed to sustain the allegation that there was any substantial failure on the part of plaintiff to properly maintain the machine. Aside from some testimony as to minor breakdowns and repairs, of a nature which should have been expected, and for which no blame can be attached to the plaintiff, there is no evidence of sufficient weight to indicate any damage resulting to defendant, particularly in view of the fact that the testimony bears out plaintiff's contentions that the operating time for which he claims compensation under the contract is exclusive of delays due to cessation of operations by reason of breakdowns and consequent repairs.

There is no showing that there was any undue delay in equipping the machine with lights for night operation, and, in view of the fact that there is no provision for this contingency in the contract, we do not consider this to be a relevant defense.

There is no obligation set forth in the contract with reference to maintenance of roads, and for this reason that portion of the defense which is based upon this claim cannot be considered.

The testimony does not bear out the charge of inefficiency made against the operator of the machine.

For these reasons the specific defenses set forth must be rejected.

That provision of the contract which must finally determine the existing dispute is stated in the third paragraph of the agreement set forth above, which reads as follows: "You (defendant) agree to furnish sufficient trucks and all other hauling facilities necessary so that the dragline may operate at a minimum of 80 cu. yd. per hour when working, and that the minimum amount of yardage to be loaded by the machine in any given month shall be 10,000 cu. yds. The minimum monthly yardage shall not apply when weather conditions prevent working for fifteen days or more per month."

The last sentence of the above-quoted paragraph, which refers to weather conditions, may be disregarded in view of the fact that there is...