Walker v. Syms

• Decision Date: 20 September 1898
• Citation: 76 N.W. 320,118 Mich. 183
• Court: Michigan Supreme Court
• Parties: WALKER v. SYMS ET AL.

76 N.W. 320

118 Mich. 183

WALKER v. SYMS ET AL.

Supreme Court of Michigan

September 20, 1898

Error to circuit court, Berrien county; Orville W. Coolidge, Judge.

Assumpsit by Thomas A. Walker against William E. Syms and another on a building contract. There was a judgment in favor of plaintiff, and defendants bring error. Affirmed.

A. Plummer and Edward Bacon, for appellants.

Lawrence C. Fyfe and Marshall L. Howell, for appellee.

MOORE J.

This case comes here upon special findings of the court. The bill of exceptions does not purport to contain all the testimony taken upon the trial. The plaintiff is a builder and contractor. In August he entered into a written contract with defendants to erect for them a large factory building. Soon thereafter he entered upon its construction. It was completed, and the defendants took possession of it in November, 1893, and were in possession when this suit was tried. A controversy arose as to how much was due from defendants to plaintiff. They were unable to agree upon the amount. Plaintiff sued defendants, and recovered a judgment against them, from which judgment defendants appeal.

Those portions of the contract important in this discussion read as follows: "The said party of the first part further agrees that all work performed under this contract shall be done in strict accordance with the plans and accompanying specifications prepared for the erection of the said buildings by E. A. Ellsworth, architect; and any question that may arise between the said parties to this contract as to the true intent and meaning of the said plans and specifications shall be referred to the architect (or, in his absence, to Louis R. Lavalle, representing the said architect as superintendent of construction), whose decision shall be final and binding upon both parties to this agreement. The entire work, when finished and complete, shall be subject to the final examination of the said architect, and all shall be made to meet his acceptance truly to the requirements of the specifications before this contract will be acknowledged and accepted as complete by the said parties of the second part. *** And it is further agreed by the said party of the first part that all work shall be finished and delivered up to the said parties of the second part free from all mechanics' liens or other claims upon the same. And they, the said parties of the second part, in consideration of the complete fulfillment of all the conditions hereinbefore set forth covenant and agree for themselves, their heirs, executors or administrators, with the said party of the first part, to well and truly pay to the said party of the first part a sum of money equal to eight and twenty-five one-hundredths ($8.25) dollars, lawful money of the United States of America, for each and every thousand of brick, and part thereof in like proportion, measured in the walls at the rate of twenty-two and one-half brick per cubic foot of wall the said price being based on the cost of said brick delivered on the site of the said proposed building, at the rate of five and fifty-five one hundredths dollars per thousand (actual count)."

The first dispute between the parties grows out of the measurement of the work. It is the claim of the plaintiff that the measurements should be controlled by the custom in Michigan, which he claims is to measure the outside of the wall, not deducting anything for the openings made by doors and windows; he contending the custom is a reasonable one, as the construction of the wall without openings takes less time and costs less than one with many windows and doors. It is the claim of defendants that they were ignorant of any such custom, and that the space occasioned by the doors and windows should be deducted from the measurements. The circuit judge found the contract did not provide for any particular method of measurement, and did not leave the method of measurement to the architect or superintendent, and the language of the contract was ambiguous as to the method of measurement. He also found that, at the time when the contract was made, there was existing in this state, and many of the other states, a custom which was uniform, general, of long standing, and reasonable, in measuring brick walls, of counting the openings as part of the solid wall, and that plaintiff, in making his contract, relied upon this custom. In the disposition of the case by the circuit judge, he treated the openings as part of the wall. Was he justified in doing so? An inspection of the contract shows no method was pointed out of making the measurements. It also fails to show, in case of a disagreement between the parties as to the method, that the architect or superintendent shall determine. The matters so referred to them are "any questions that may arise between the said parties to this contract, as to the true intent and meaning of the said plans and specifications." This language is not broad enough to convey the authority to decide the disputed question of method of measurement. The contract, then, not providing for the method of measurement, how shall it be decided, except by the custom of the place where the contract is made and performed?

In Lowe v. Lehman, 15 Ohio St. 179, there was a written contract for the construction of a brick wall, where payments were to be made for the bricks furnished and laid in the wall, at $6.25 a thousand. The contract was silent as to the method of measurement. Parol proof was given as to the custom which...