Quigley v. DeHaas

Mr. Justice Gordon delivered the opinion of the court, October 9th 1876. This action was well brought against Quigley & Bailey. Though they contract as agents, for the benefit of the Navigation Company, yet they do so under their own individual seals and hence become individually liable: Hopkins v. Mehaffy, 11 S. & R. 128, per Gibson, J. So far we agree with the learned judge below, but from his construction of the contract we must dissent. Whether a contract be entire or severable depends more on the intention of the parties as gathered from the whole instrument, than upon the specific method of performance or payment. We have, in the case of Carmalt v. Platt, 7 Watts 318, an instance of this manner of construction. By the terms of the contract, Platt agreed, from the lands therein described, to manufacture and deliver to Carmalt, 60,000 feet of white pine boards, for which he was to receive $300. In a subsequent covenant, in the same agreement, Carmalt agreed to sell to Platt certain lands for which Platt was to pay $525, in lumber, at customary prices. At first blush this would appear to be a severable contract; but it was held not to be so. For though, by a strict construction of its terms, it might well bear such an interpretation, yet as it was apparent that it would not have been executed by the parties except as an entire contract, it was held to be entire. The rule as adopted in the case of the Lucesco Oil Co. v. Brewer, 16 P. F. Smith 351, from Parsons on Contracts, that if the part to be performed by one party consists of several and distinct items, and the price to be paid by the other is apportioned to each item to be performed, or is left to be implied by law, such contract will generally be held to be severable, is certainly applicable to contracts such as that which was under consideration in that case. But it is not even intimated that the circumstances therein stated would override the clear intention of the parties if such intention were apparent from the whole face of the agreement. Indeed it is expressly said by the author, by whom the above rule is stated, that no precise rule can be given by which this question, in a given case may be settled, but like most other questions of construction, it must depend upon the intention of the parties as gathered from the whole subject-matter of the contract: 2 Pars, on Cont. 517. In any view, this contract must be taken as entire. It was [274] designed to accomplish a single object, to wit: the navigability of the stream therein mentioned. It was one job, though made up of several items; there was one price, though, for convenience, because the work was to be paid for as it progressed, it was apportioned to the several items. Even this apportionment must be taken as inseparable from the whole work, for it is more than probable that, for instance, the price of $1400 for building each dam, was a value put upon such dams as part of the whole job, rather than as separate, isolated items ; for the dams would be worth little or nothing with the remainder of the creek unimproved. The parties themselves have, however, put this matter beyond doubt by the following clause in their agreement, to .wit: “ out of all the above estimated costs of each of the respective divisions of work, Quigley & Bailey shall be privileged to retain fifteen per centum until the whole is completed in a satisfactory manner, according to contract.” That this provision was designed to secure the proper completion of the whole work is not open to doubt, and if the plaintiff is permitted to recover full price for a partial performance, it is certain that this covenant is, in effect, abrogated. We conclude, therefore, that the court below was wrong in holding the subject-matter of this contract to be severable. We think also that the court erred in refusing the defendants’ second and third points. By the contract John M. Mason was the arbiter who was to determine whether the work was done according to the provisions of that contract. This provision was a reasonable one, designed to prevent controversy, and until the plaintiff procured the judgment of this arbiter he had no action. The cases of Monongahela Nav. Co. v. Fenlon, 4 W. & S. 205, and Reynolds v. Caldwell, 1 P. F. Smith 298, certainly do hold that, in a case like that above stated, the decision of the arbiter is a sine qua non to an action for the price of the work. We find nothing in the evidence which goes to show that Mason, as arbiter, pronounced upon plaintiff’s work, or upon any part of it, as a finished job. At best Mason did but advise DeHaas to do certain things which Bailey required to be done, but whether they met his approval when done we are not informed. We do not say that the plaintiff might not have been excused from producing this judgment or decision by showing circumstances which rendered its production impossible, such as the death or absence of the arbiter oh, his refusal to act — or that the defendants by the acceptance of the work, or otherwise, waived that part of the contract. But in the absence of such showing the rule as above stated holds good. Judgment reversed, and venire facias de novo awarded.