Keopple v. National Wagonstock Co.

Wood, J., (after stating the facts). First: The appellee contends that the contract “is unilateral,” “lacks mutuality,” and is therefore unenforceable, because of the following clause: “Whenever Keopple & McIntosh shall be unable to furnish logs for any reason, the National Wagon-stock Company may purchase from other parties until such time as Keopple & McIntosh shall again be able to furnish them.” The contract was prepared by appellee, as shown by a telegram set forth in the complaint. The clause under consideration was inserted, not for the purpose of relieving appellants of their obligation “to furnish not less than two and a half million feet of logs each year,” but to enable appellee, in case appellants were “unable to furnish logs for any reason,” to “purchase from other parties.” It is manifest that, when all the provisions of the contract are considered together and from the viewpoint of the parties when they executed it, the clause under consideration was solely for the benefit of appellee. In Wood v. Kelsey, 90 Ark. 272-77, we said: “Courts may acquaint themselves with the persons and circumstances that are the subjects of the statements in the written agreement, and are entitled to place themselves in the same situation as the parties who made the contract, so as to view the circumstances as they viewed them, and so as to judge of the meaning of the words and of the correct application of the language to the things described.” Loudenbeck Fertilizer Co. v. Tennessee Phosphate Co., 61 L. R. A. 402; Hoffman v. Maffioli, 47 L. R. A. 431; Rockefeller v. Merritt, 35 L. R. A. 633; Minneapolis Mill Co. v. Goodnow, 40 Minn. 497. “The construction of a contract does not depend on any formal arrangement of words, but on the reason and sense of the matter collected from the whole contract. Johnson v. Wilkerson, 96 Ark. 320; North & South Rolling Stock Co. v. Ohara, 73 Ill. App. 691. When these familiar rules are applied to the contract under consideration, there is no room to doubt that the parties to the contract intended that appellants should be bound to furnish, and appellee would correlatively be bound to pay for, “not less than two and one-half million feet of logs each year during the life of the contract.” The parties had estimated that it would take at least that quantity to keep the mill going, and hence they stipulated that number of feet as the minimum of quantity that appellants were required to furnish. The appellee was only “required to take the number of logs necessary for their requirements at any time;” but the “requirements” of the appellee, under the contract, were two and one-half million feet. Its obligation to take that quantity imposed upon appellants the corresponding obligation to furnish that quantity. The obligations to furnish and to take were reciprocal and binding obligations. See ThomasHuycke-Martin Co. v. Gray, 94 Ark. 9. As thus construed, there is no incompatibility or repugnance in the provisions of the contract; but they harmonize with each other, and thus effectuate the evident purpose of the parties. That such was the understanding and agreement of the parties is also clearly shown by the correspondence between the parties after they had operated under the contract for several months. What the parties have done under a contract is generally convincing evidence of what they understood the contract to mean and of their intention in making it. Second. The amended and substituted complaint took the place of the original complaint. There is no provision in the contract authorizing either party to terminate the contract on giving to the other thirty days’ notice, as contended by appellee. The notice provided for gives the appellants the right to dispose of the excess of logs beyond the requirements of the bending plant of appellee upon thirty days’ written notice from the latter to the former not to cut or deliver any more logs. The notice has no reference to the termination of the contract, but only, as stated, to the disposition by appellants of an excess of logs. But, even if the notice specified had reference to a termination of the contract, the amended and substituted complaint, which alone can be considered, recites “that defendant * * * made a breach of the contract without giving the plaintiffs the thirty days’ notice required by the contract;” and, again, “notwithstanding this knowledge, defendant never at any time notified plaintiffs, by its officers, that it did not intend to take at least two and one-half million feet of logs per year.” On demurrer, these allegations as to want of notice must be taken as true. Third. The contract was not void for uncertainty. It is sufficiently definite to ascertain the damages that would accrue from its breach. The complaint states a cause of action, arid the demurrer should have been overruled. The judgment is reversed, and the cause is remanded with directions to overrule the demurrer.