Dugan v. Kelly

McCuuuoch, J., (after stating the facts.) The construction of a contract free from ambiguity and technical terms is a question of law to be determined always by the court. Estes v. Booth, 20 Ark. 583; Ark. Fire Ins. Co. v. Wilson, 67 Ark. 533; 2 Parsons on Cont. (9th Ed.) p. 648; 1 Beach, Mod. Law of Cont: § 743. Oral testimony is not admissible to contradict, vary or materially affect the terms of a written contract, though, where the provisions of a written contract are apparently conflicting, or the meaning of the terms are so ambiguous or doubtful that the meaning cannot be ascertained from the instrument itself, parol evidence is admissible to show the subject-matter of the agreement, the circumstances surrounding the execution of the contract and the conduct of the parties under it, as- a means of correctly interpreting the language used. Railway v. Shinn, 52 Ark. 95; Gauss v. Doyle, 46 Ark. 122; Weis v. Meyer, 55 Ark. 18; Robbins v. Kimball, 53 Ark. 414. The terms of the contract in this case are not ambiguous, we think, in respect to the right of appellee to charge for sloping in addition to 300 yards. He could thereunder charge for the excess, and the court properly construed the contract to that effect. The effect of the contract was to require appellee to remove the necessary quantity of rock and earth to properly slope the bank, and to charge for the excess over 300 cubic yards at the rate of $1 per yard. He was not bound to first procure the consent of appellant to the removal of the excess, provided it was reasonably necessary to a complete and proper performance of the work. It was a part of his contract to properly perform the work. But he would have had no right to insist upon a removal of any excess above 300 yards against the objections of appellant. It is not contended that appellant so objected, though his agent denied that he authorized appellee to remove any sloping in excess of the 300 yards. The court properly submitted to the jury the question whether or not the quantity removed was necessary in order to complete the work according to contract, and no error was committed in doing so. The fifth and sixth instructions asked by appellant would have told the jury that the plaintiff could recover only for work in removing a “reasonable or true slope” from the ‘top of the retaining wall, and not from the bottom of the wall, however essential the latter may have been to a complete performance of the work, and even though the necessity for running back from the bottom of the wall arose without any fault or negligence on the part of appellee. We do not think that is a fair construction of the contract. Appellee agreed to build the wall, but did not guaranty that it would prevent caving, or that sloping from the top thereof would be sufficient. He merely agreed, for a stated sum, to make the excavation, erect the wall, and remove as much as 300 yards of sloping. For any additional sloping he was to receive extra pay at the rate of $1 per yard. If it became necessary to remove sloping running back from the bottom or behind the wall, he could under the contract charge for it. We find no error, and the judgment is affirmed.