Yazoo & Mississippi Valley R. R. Co. v. First Nat. Bank of Vicksburg

• Decision Date: 20 January 1919
• Docket Number: 20114
• Citation: 80 So. 382,119 Miss. 59
• Parties: YAZOO & MISSISSIPPI VALLEY R. R. CO. v. FIRST NATIONAL BANK OF VICKSBURG
• Court: Mississippi Supreme Court

80 So. 382

119 Miss. 59

YAZOO & MISSISSIPPI VALLEY R. R. CO. v. FIRST NATIONAL BANK OF VICKSBURG

No. 20114

Supreme Court of Mississippi

January 20, 1919

Division B

1 CONTRACTS. Construction. Construction as whole.

A contract must be construed as a whole and each of its separate provisions should be considered and all of the provisions if possible, harmonized.

2 CONTRACTS. Railroad Construction. Construction of contract.

Where a contract for building a concrete culvert provided for payment for concrete at a certain price per cubic yard, for placing re-enforcing bars, for excavation, and for sheeting and bracing at a certain price per thousand feet in "place complete," the work was to be done on a unit basis, and plaintiff might recover under the last item for the value of form lumber used in laying the concrete.

HON. E L. BRIEN, Judge.

APPEAL from the circuit court of Warren county, HON. E. L. BRIEN, Judge.

Suit by the First National Bank of Vicksburg against the Yazoo & Mississippi Valley Railroad Company. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Affirmed.

Hirsch, Dent & Landeau and Robert B. Mayes, for appellant.

Brunini, Hirsch & Griffith, for appellee.

OPINION

STEVENS, J.

Appellee, as plaintiff in this action, sued to recover the price or value of form lumber used by Mr. Havis, plaintiff's assignor, in the construction of a concrete culvert for the defendant railroad company. It would unnecessarily prolong this opinion to make a detailed statement of the facts or to copy the correspondence, the invitation for bids, the proposal of Mr. Havis to do the work, and the plans and specifications which appellant claims must govern. It is conceded that the one and only question presented to this court is the construction of the contract in so far as to determine whether thereunder the plaintiff can recover for the lumber used in making the forms into which the cement was placed. Appellant requested bids "for the construction of a reinforced concrete box culvert at bridge L-218-35 north of Vicksburg." In the original invitation for bids the chief engineer of the railroad company listed the approximate quantities for the work, and in doing so separately listed "1-2-4 concrete," "reinforcing bars," "excavation," "sheeting and bracing;" the quantity of each being approximated, but not guaranteed. The original invitation for bids was issued in October, 1915. Mr. Havis, among others, submitted a bid under date of October 25, 1915, in which he proposed to do the work complete--"inconsideration of the following prices:

(1) 1-2-4 concrete, price per cubic yard

$ 8 45

(2) Furnishing and replacing reinforcing bars,

price per pound in place complete

03 3/4

(3) Excavation, price per cubic yard

1 00

(4) Sheeting and bracing, price per M. ft. B. M.

in place complete

50 00"

In making this proposal Mr. Havis accompanied his bid with a letter in which he states certain conditions upon which the bid is submitted, among others being the following statement which may have some bearing on this case:

"I further beg to advise that this proposal is based on the understanding that the construction of this box culvert will be ordered at a period when the stage of water in Centennial Lake will permit work to proceed without the necessity of constructing cofferdams requiring the use of piles, or otherwise. Should it be required to protect the work by building cofferdams, same will be included as extra work on basis as provided in specifications."

This original proposal of Mr. Havis was not accepted, but the contract was awarded to the Vicksburg Boiler & Iron Works. About a year after the original request was made for bids appellant requested Mr. Black, its assistant engineer at Vicksburg, to negotiate with Mr. Havis for the construction of this same concrete culvert which the Boiler & Engine Works for some reason had not constructed. These negotiations led to an agreement with certain significant changes in the contract. These changes are briefly outlined in the following letter written by Mr. Havis of date September 23, 1916.

"The price, eight dollars and forty-five cents per cu. yd. for 1-2-4 concrete in place will be changed to seven dollars and seventy-four cents per. cu. yd. upon the understanding that the railroad company will furnish all gravel and sand required and to cover the increase in the price of cement which was one dollar and thirty-five cents when my proposal was submitted, the present price being two dollars per barrel.

"The price of three and three-fourths cents per pound for furnishing and placing reinforcing bars will be decreased to one and three fourths cents per pound for handling and placing reinforcing bars, the bars to be furnished by the railroad company."

It appears that the expression "1-2-4 concrete" means concrete of one part cement two parts sand, and four parts gravel or broken stone. The culvert was constructed by Mr. Havis, and there is no controversy as to the character of the work.

It is appellant's contention that in the letter of Mr. Havis of date September 23, 1916, addressed to Mr. Westfall, engineer of bridges, there was a revised price "for concrete in place," and that the correct interpretation of this contract placed upon Mr. Havis the duty of furnishing the lumber necessary for making forms for the cement, that the concrete could not be placed without the forms, and that "concrete in place," contemplates a completed job as to mixing and placing the concrete.

The rights of Mr. Havis under the contract were assigned to appellee, who contends that the provision of the contract for "concrete in place" must be construed in connection with item 4 of the contract, "Sheeting and bracing price per M. ft. B. M. in place complete, fifty dollars."

A jury was waived, and the cause submitted to the trial judge upon pleadings and proof. The learned circuit judge gave judgment for the plaintiff in the sum of two thousand four hundred one dollars and twelve cents, from which this appeal is prosecuted.

There is some controversy as to whether a written contract signed by Mr. Havis after the work had been done is the sole evidence of the agreement and whether it should have been admitted in evidence. This contract was signed by Mr. Havis at the request of Mr. Black, and in a letter written by Mr. Havis to the chief engineer he states, among other things:

"This work has already been completed, as you know, according to exchange of letters, . . . and, as stated before, I am signing the contract and returning it to you since Mr. Black states this is only a formality so that the railroad company may complete its files."

Under our view of the case it is immaterial whether appellant may or may not now rely upon...