Viernow v. City of Carthage

• Decision Date: 06 December 1909
• Citation: 123 S.W. 67
• Parties: VIERNOW v. CITY OF CARTHAGE.
• Court: Missouri Court of Appeals

123 S.W. 67

VIERNOW v.CITY OF CARTHAGE.

Springfield Court of Appeals. Missouri.

December 6, 1909.

1. EVIDENCE (§ 461)—CONSTRUCTION OF CONTRACT—EVIDENCE OF MEANING OF PARTIES— "MACADAM."

Plaintiff contracted to furnish for two years all the crushed stone needed by defendant in construction and repair of its streets, defendant agreeing to use said crushed stone in all street construction work and all repair work done by it where the improvement is made with macadam. Held, that as the word "macadam" may have a variety of meanings, and an ambiguity therefore existing, plaintiff might show that the parties, when making the contract, understood that it included river and mining gravel as well as crushed stone.

2. EVIDENCE (§ 161)—BEST AND SECONDARY— ORDINANCES.

Provisions of an ordinance may not be proved by oral testimony, but it should be produced.

3. MUNICIPAL CORPORATIONS (§ 253) — CONTRACT—CONSTRUCTION —BREACH.

Though gravel be not included in the term "macadam," as used in the contract of plaintiff to furnish for two years all the crushed stone needed by defendant in construction and repair of its streets, and of defendant to use said crushed stone in all street construction work, and all repair work done by it where the improvement is made with "macadam," yet it would not be a breach of the contract for defendant to use gravel as a thin layer over the crushed stone, to form a binder only, and to more readily give to it a smooth surface, or to use some gravel in repair work on streets that had been previously improved by the use of gravel, if in making such repairs crushed stone could not be used in such a way that it would form a compact body, as it would in original street construction work.

4. DAMAGES (§ 176)—BREACH OF CONTRACT— LOST PROFITS—EVIDENCE.

Plaintiff cannot, over defendant's objection, prove his lost profits from defendant's breach of its contract to buy crushed stone of him at

a certain price per cubic yard by merely stating his profits were a certain amount per yard, but the facts showing the cost of production must be given.

Appeal from Circuit Court, Jasper County; Henry L. Bright, Judge.

Action by M. F. Viernow against the City of Carthage.Judgment for plaintiff.Defendant appeals.Reversed and remanded.

On August 27, 1906, plaintiff and defendant entered into a contract by which plaintiff was to furnish crushed stone to defendant for two years for 60 cents per cubic yard.The essential parts of this contract are as follows: "The party of the first part, in consideration of the price and stipulations hereinafter contained, hereby agrees, for a term of two years from date hereof, to supply and furnish the party of the second part all the crushed stone to be used, and needed for use, during said term by said city of Carthage, in construction and repair of streets and alleys in said city, said stone to be furnished f. o. b. wagon at quarry located at the north end of Case street in said city.For all such stone used by the said party of the second part, said second party hereby agrees to pay the said M. F. Viernow the price and sum of sixty cents per cubic yard, bills to be rendered and paid monthly.The city of Carthage, in consideration of the premises and the prices hereinbefore stipulated, agrees upon its part to use said crushed stone in all street construction work and all repair work done by it where the improvement is made with macadam."After the expiration of two years, the plaintiff brought this suit by which he seeks to recover for loss of profits on crushed stone which he contends the city was bound, under its contract, to buy from him, and alleges that instead of using his product, the city used river and mining gravel.There was judgment for plaintiff, and defendant has appealed.

R. A. Hockensmith, Perkins & Blair, and J. D. Harris, for appellant.R. A. Mooneyham and Howard Gray, for respondent.

COX, J.(after stating the facts as above).

Defendant contends that the court committed error in permitting plaintiff to show by witnesses what the parties to the contract understood the word "macadam" to mean when they executed the contract, that the contract is not ambiguous, and, hence it was the duty of the court to construe it and declare its meaning as it was written.The word "macadam," as used in this contract, evidently refers to the material to be used, and there can be no question but that the crushed stone...