Perkins v. Ophir Silver Mining Co.

By the Court, Sprague, J.: The rights of the parties involved in this suit must be determined by the terms of their written contract of June 25th, 1862, and the only point necessary to determine the controversy is involved in the question whether, by the terms of that contract the plaintiff stipulated to receive at Sacramento all the freight consigned to him at that point by defendant, after making the contract and before November, 1862, and forward and deliver the same with usual dispatch to defendant at Virginia City and Washoe Valley, at five cents per pound, or stipulated to receive at Sacramento, forward and deliver to defendant at the above named places an amount of freight not exceeding one thousand tons, for the price and compensation per pound named in the agreement. The portions of the contract evidencing the intent and meaning of the parties thereto, so far as relates to this question, are as follows: [17] "The said company hereby agrees with said Perkins that they will consign to him at Sacramento all their freight intended to be transported to Nevada Territory during this Summer and Fall, amounting, it is now supposed, to about one thousand tons, and will deliver it to him from time to time in such quantities that at least twenty-five per cent of the whole freight shall be delivered to him during each and every month from the first day of July next. And the ¿aid William L. Perkins agrees with the said company that he shall and will receive at the levee in Sacramento all such freight as the company may consign and deliver to him on or before the 31st day of October next, and shall and will, with all reasonable and the usual dispatch, forward the same, and deliver in like good order as received, at the company’s mine, in Virginia City, or at their mills in Washoe Valley, as he shall be instructed to do. And the said company agree with said Perkins to pay him five cents per pound for all freight received by him and delivered at the mine at Virginia City, or the mills in Washoe Valley.” It is not claimed but that this agreement was fairly made, and the intent and meaning of the parties thereto fully expressed by its terms; nor was any attempt made at the trial to show by extrinsic evidence as to the subject matter of the contract, or attendant surrounding circumstances of the parties, that any other meaning should be attached to the words and terms employed than such as their literal sense implies. But appellant insists .that by the terms of the contract plaintiff stipulated to transport and deliver to defendant an amount of freight not exceeding one thousand tons, at five cents per pound, and respondent insists that by the terms of the contract defendant agreed to deliver to plaintiff, at Sacramento, all their freight, and plaintiff undertook and agreed to forward to the points specified, and deliver all such freight as defendant should consign and deliver to him at Sacra [18] mentó on or before the 31st day of October, 1862, for fé cents per pound. It is very evident from the plain and simple tenor of the contract that respondent was bound thereby to consign and deliver to appellant, at Sacramento, thereafter “ all their (its) freight intended to be transported to Nevada Territory during that Summer and Fall,” and to so deliver to appellant, at Sacramento, twenty-five per cent of such freight, in each of the months of July, August, September, and October, 1862, and appellant was bound to “receive, at the levee in Sacramento, all such freight as the said company might (thereafter) consign and deliver to him on or before the 31st day of October, 1862,” and forward and deliver the same, “with all reasonable and the usual dispatch,” at the company’s mine in Virginia City, or at their mills in Washoe Valley, as he should be instructed by the company, in consideration of five cents per pound, to be paid him by the company. The words “ amounting, it is now supposed, to about one thousand tons,” as used in respondent’s covenant to consign and deliver to appellant, at Sacramento, “all its freight - intended to be transported to Nevada Territory,” taken in connection with appellant’s covenant to “receive, at the levee in Sacramento, all such freight as the said company may consign and deliver to him on or before the thirty-first day of October,” cannot be understood as limiting or controlling the quantity which respondent was bound to consign and deliver, or which appellant was bound to receive and forward. By the terms and evident import and meaning of these mutual covenants, respondent was bound to consign and deliver to appellant, at Sacramento, on or before the 31st day of October, 1862, all its freight intended to be transported to Nevada Territory during the Summer and Fall after the date of the contract, whether the quantity should be two hundred or two thousand tons. And appellant was bound to receive, at the levee in Sacramento, all such freight as respondent should so consign and deliver to him on or before the 31st day of October, 1862, and forward and deliver the [19] same, with all reasonable and usual dispatch, at the points indicated in Nevada Territory, in consideration of five cents per pound, which respondent was bound to pay in consideration of such receipt, forwarding, and delivery by appellant. Had all of respondent’s freight for Nevada Territory during the Summer and Pall, 1862, after the date of the contract, amounted to but five hundred tons, and this had been consigned and delivered to appellant at Sacramento on or before October thirty-first, and he had received, forwarded, and delivered the same at respondent’s mine and mills in Nevada Territory, and had been paid therefor by respondent the stipulated rate of five cents per pound, it would hardly be contended that respondent would be responsible in damages to appellant under this contract for non-compliance with its terms, in failing to deliver one thousand tons. But had respondent’s freight to Nevada, during the same period, amounted to fifteen hundred tons, and it had consigned and delivered to appellant one thousand tons, on or before October thirty-first, which he transported to Nevada, and to other parties five hundred tons, who received and transported the same to Nevada for four cents per pound, appellant, through his learned counsel, would very likely, and we think for sufficient cause, he seeking redress in an action against respondent for a breach of its covenants in this contract. The manifest intention of the parties, at the time of executing the contract, was that respondent should consign to appellant, for transportation from Sacramento to Nevada, all its freight during the remainder of that season, be the same more or less, and pay to him for such transportation five cents per pound, and that appellant should receive, transport, and deliver, at the points indicated, all the freight so consigned to him, be the same more or less, at the stipulated rate of five cents per pound. “All the freight ” are the controlling words in the covenants of each party to the contract, as to quantity, and clearly evidence the intention and meaning of both parties thereto. The facts, as originally found by the Court, including the twelfth, seventeenth, eighteenth, [20] and nineteenth findings, which were stricken out on notice and motion of respondent prior to judgment, we think were fully sufficient to justify the conclusions of law based thereon, and entitle respondent to judgment; hence, if it were error for the Court to strike out and endeavor to correct its findings in the mode adopted, (as to which no opinion is expressed,) appellant is not prejudiced thereby. Although, in the absence of a written agreement between the parties covering the whole subject matter, the facts contained in the twelfth, seventeenth, eighteenth, and nineteenth findings would doubtless be sufficient to charge respondent with the actual value of the services rendered and advances made by appellant on account of its freight forwarded and delivered by him subsequent to October 14th, yet, in view of the existence of such written agreement, the facts found do not establish a new oral contract, nor a modification or alteration of such original written agreement in reference to the same, or any portion of the same subject matter. It nowhere appears that the President of the corporation was authorized to enter into any agreement, or consent to any arrangement with appellant, modifying, or in any particular changing the terms of the original agreement in writing, deliberately made and formally executed by the parties thereto; nor does it appear that on account of anything said or done by the President, Secretary, or other officer or agent of the corporation, appellant was in any manner prejudiced or induced to vary from a strict compliance with his obligations, voluntarily assumed on his execution of the original written agreement. Judgment affirmed. Mr. Justice Rhodes expressed no opinion.