Mason v. Alabama Iron Co.

BRICKELL, C. J. — The argument of counsel concedes that the material question, decisive of the case, is, whether the contract into which the parties entered imposed on the defendant the duty of furnishing the plaintiff with corn and supplies, while he was engaged in performing the contemplated work, [274] though not delivering coal; or whether the - duty rested on the defendant only while the plaintiff was engaged in the delivery of coal. The question is to be solved by .an examination and interpretation of the contract, which is in writing. In the construction or interpretation of all contracts, oral or written, the object is to ascertain, and, if possible, to effectuate the intention of the parties, so that performance may be enforced according to the sense in which they mutually understood it at the time it was made. It is necessary not only to read and examine the mode in which the contract is expressed, but to consider the situation of the parties, the subject-matter, and the object it is intended to accomplish. — 1 Brick Dig. 383, § 161. And every word and clause must be taken into consideration, and, if possible, have some effect given to it. — Heywood v. Perrin, 10 Pick. 228. Applying these elementary principles to the contract made by these parties, and we have but little hesitation in reaching the conclusion, that upon the defendant is devolved the duty of furnishing the plaintiff corn and supplies, not only while ho was engaged in delivering coal, but also while he was engaged in doin'gthe work necessary and contemplated to be. done, before there could be a delivery. The defendant owned, or was possessed of two parcels of land, one containing one hundred acres, and one containing thirty acres, and was desirous to convert into charcoal all suitable timber upon the lands. The duty imposed on the plaintiff by the contract is the conversion of the timber into charcoal, and its delivery to the defendant. A stipulation on his part is (to follow the words of the contract) to “ commence delivering said coal, as soon as he can get ready to do so, by commencing work at once, and pushing the job as fast as'he can, and to send six hundred bushels each and every day after commencing to send coal, Sundays and extreme rainy days only excepted, until all the timber on the said one hundred and thirty acres of land is made into charcoal and sent in.” From the very nature of the duty, there must of necessity be a period of time while the plaintiff was engaged in its performance, that, without any want of diligence on his part, he could not possibly make a daily delivery of the quantity of coal it was stipulated he should deliver. The timber must be cut, kilns, or ovens for charring it must be constructed, and other labor done, requiring not only7 the services of the plaintiff, hut of others whom he might employ. While engaged in this service, the plaintiff would .be in the performance of the duty he had assumed, as strictly and essentially, as while'engaged in the delivery of coal. This the parties clearly contemplated, and therefore the stipulation is, not that there shall be an immediate delivery of coal, or that [275] -delivery shall be commenced at any certain or fixed time, but that the plaintiff must at once commence work, and as soon as he could by “ pushing the job ” commence the delivery of coal. It was a duty or service which was. made up of parts which must be performed at different times, and some of which must in performance precede others, the parties contemplated, and for which they were contracting. In the performance of the sendee it was expected- and intended that the plaintiff would employ the assistance of others, and therefore it was stipulated that he should not employ any one who was objectionable to the superintendent of the defendant. In consideration of the performance by the plaintiff of the service and duty, in the manner prescribed by the contract, the defendant stipulated, first, to pay four cents per bushel for the ■charcoal delivered. To follow again the words of the contract: “And the said Alabama Iron Co. agrees to pay as follows : As fast as the work progresses in said job and the charcoal is delivered as before specified, to furnish corn and supplies from their store at Alabama Furnace necessary to carry on said job of coaling at their regular'selling prices. And the said Mason agrees that he and all employed in said job will get all their supplies of every kind from the store of the said Alabama Iron Co., as before mentioned. The said Alabama Iron Co. do not agree to pay much, if any money, as the job progresses, but what money may be cleared in- said job by said Mason at the completion of said job will be due.” It is to be observed of. this clause of the contract, that it manifestly distinguishes between the payment of money for the coal delivered, and the furnishing of corn and supplies necessary to carry on the work. There was no right on the part of the plaintiff to demand money, except as the work progressed and the charcoal was delivered, as delivery was specified in the contract. There could be no delivery unless the work was in progress, and until delivery and the measurement of the coal, there could be! no ascertainment of the money due or owing. Therefore, the stipulation is for the payment of money only as the work progressed and charcoal was delivered. And for its own protection the clause is inserted, that the defendant does not agree to pay much, if any, money as the job progresses. The stipulation as ^..furnishing corn and supplies is essentially different— these are to be furnished as it may be necessary to carry on said job of coaling. The job was being carried on, the work was in progress, while the plaintiff was engaged in cutting timber, constructing kilns and ovens, and doing other work necessary to convert the timber into coal — work -which must be done before the coal could be produced. The work required the assistance of others whose wants and necessities [276] must be supplied, and who, as well as the plaintiff, were bound to obtain their supplies from the store of the defendant. There is no limitation as to the amount or character of the supplies other than they must be such as are necessary t'o carry on the work — no limitation akin to that in reference to the payment of money. The duty of furnishing the supplies resting upon the defendant, and the duty resting upon the plaintiff and his employees to obtain them only from the store of the defendant, are reciprocal — the one can not exist without the other. It could hardly be insisted that the plaintiff and his employees, while engaged in the work which necessarily precedes the delivery of the coal, were at liberty to. purchase supplies elsewhere than from the store of the defendant. Not having that liberty, it is but fair and reasonable that the duty of furnishing the supplies necessary to cany on the work should rest upon the defendant. Such, it seems to us, must have been the sense in which the parties understood the contract when it was made. From the very nature of the work, there would be a period of time when it would be in progress, and when supplies would be necessary to continue it, before coal could be made; and therefore the parties intended, as they have stipulated, that the supplies should be furnished. If we were to adopt the construction' of the contract insisted on by the defendant, that the supplies were to be furnished only as money was to be paid — “ as the work progresses and charcoal is delivered,” we do not see what force or meaning can be given to the stipulation that they were to be furnished as necessary to carry on the work. Nor can any reason be assigned for expressing in different language the obligation and duty to make payments of money, and the obligation and duty to furnish supplies. The words of the contract to which we have referred, can not be rejected. They were not introduced thoughtlessly or carelessly, for it is obvious the contract was drawn with care and deliberation. We repeat our conclusion, that the contract imposed upon the defendant the duty to furnish the plaintiff and his employees with corn and supplies necessary to carry on the work, not only while the charcoal was being delivered, but while the plaintiff was engaged in doing and having done work which was necessary in carrying out the object of the contract, the conversion of. the timber into coal. A refusal of the defendant to furnish corn and napplies, not justified by a default on the part of the plaintiff, was a breach of the contract, giving to the plaintiff an immediate cause of action. — Fail v. McRee, 36 Ala. 61; George v. C. & M. R. R. Co., 8 Ala. 234; Drake v. Goree, 22 Ala. 409. For a breach of the contract but one action lies, in which the plaintiff must recover his entire damages, though the period of performance has not expired at the time the action is commenced. [277] Fail v. McRee, supra; Ramey v. Holcombe, 21 Ala. 567. The measure of recovery to which the plaintiff is entitled, according to former decisions, is the profits which he could have secured if. he had been permitted to perform the contract. — Fail v. McRee, supra; Ramey v. Holcombe, supra. The circuit court did not err, therefore, in excluding evidence of the expense of building houses on the lands for the occupancy of the plaintiff and his employees, or of the expense incurred in bringing the employees to the lands. Fpon cross-examination, the plaintiff could properly inquire of the witness Glidden as to his interest in the suit, and his relations to the defendant. The fact of interest and his relations to and with the defendant may. justly be considered by the jury in determining his credibility. But the amount of salary paid to him by the defendant for services rendered is not a fit subject of inquiry. The result is, the circuit court erred in sustaining the demurrer to the second and fifth breaches assigned in the complaint, and in giving the second instruction requested by the defendant. These are the questions to which the argument of counsel have beeu directed, and we do not deem it necessary to consider any others which may be presented by the record. Let the judgment be reversed and the cause remanded.