A. M. Dillow & Co. v. City of Monticello

Ladd, J. It seems that, after the plaintiff had sunk the twelve-inch pipe in the well seventy-five feet, a coupling slipped down on one section of the pipe four or five inches, rendering the particular- section of pipe useless, and that, before the work could be continued, this pipe must have been removed. The sole issue is whether under the terms of the contract as pleaded defendant was required to remove or cause to be removed this pipe so as to enable plaintiff to proceed with the work. According to the petition, the clause in the contract, “it [the city] will assume all risk on the twelve-inch pipe,” had a trade meaning that the party so assuming is to “replace all or any pipe that may prove unfitted and unavailable for use in properly [428] drilling and constructing said well” and obligated said party “with the affirmative duty and obligation to do all the things and matters necessitated by any and- all pipe giving way or proving to be inefficient and thus make it possible for the drillers to proceed with the work of drilling the well, or 'if said party or parties, so assuming, do not themselves, they must' be ready and prepared to stand the expense of having the same done.” Because the petition so alleged and the demurrer admits the allegations well pleaded, the clause will be assumed to have the meaning stated. The ruling on the demurrer was that, conceding this, no cause of action was alleged, inasmuch as there was no breach of contract on the defendant’s part, and plaintiff admitted that the well had not been completed. 1. Evidence: custom and usage I. The signification or import of words or expressions in any trade or vocation may be so fixed by usage that, in order to arrive at the true intent of the párties in entering a contract, resort must be had to proof of the technical meaning of such words or expressions. In speaking of the usages of trade, Greenleaf says: “Their true office is to interpret the otherwise indeterminate intention of the parties, and to ascertain the nature of their contracts arising, not from express stipulation, but from mere implication and presumptions and acts of doubtful and equivocal character, and to fix and explain the meaning of words and expressions of doubtful and various senses.” 2 Greenl. Ev., section 251. Further on he says, quoting from, Lord Lyndhurst: “But, though usage may be admissible to explain what is doubtful, it is not admissible to contradict what is plain.” Id., section 292. In Barnard v. Kellog, 10 Wall. 383 (19 L. Ed. 981), the court, speaking through Mr. Justice Davis, thus stated the rule: “The proper office of a •custom or usage in trade is to ascertain and' explain the meaning and intention of the parties to a contract, whether written or in parol, which could not be done without the [429] aid of extrinsic evidence^ It does not go beyond this, and is used as a mode of interpretation, on the theory that' the parties knew of its existence and contracted with reference to it. It is often employed to explain words or phrases in a contract of doubtful signification or which may be understood in different senses, according to the subject-matter to which they are applied. But, if it be inconsistent with the contract or expressly or by necessary implication contradicts it, it can not be received in evidence to affect it.”See, also, McCarthy v. McArthur, 69 Ark. 313 (63 S. W. 56). 2 same: contract for digging well construction. II. No claim is made that defendant did not furnish plaintiff pipe to replace'that in the well. The sole controversy relates to' the removal of a section, of pipe from the. "well because of the coupling having “dropped down some four or five inches out of place, -j^ug ren¿ering -fog pipg as it then Stood useless and unfitted for further use in said well, and making it necessary and. imperative that said section of pipe and coupling be removed and taken out of said well and repaired or discarded, and new pipe and coupling substituted in its stead.” The plaintiff contends that the provision of the contract that the city “will assume all risk on the twelve-inch pipe,” in well diggers’ parlance, among other things, means that the city was “to do all the things and matters necessitated by any and all pipe giving way or proving to be insufficient, and thus make it possible for the drillers to' proceed with the - work of drilling the well, or, if said party or parties so assuming do not themselves, they must be ready- and prepared to stand the expense of having the same done.” Conceding this to be true, the city had the option either to remove the pipe or “be ready and prepared to stand the expense of having the same done.” In what way a city must have been “ready and prepared” is not clear, and is not alleged. Surely it was not meant that it should exhibit the necessary money to the contractor. [430] It could only pay such expense upon presentation of hills therefor to the council, and upon allowance receive proper warrants therefor. All that could have been meant was that the city must either remove the pipe or bear the expense of plaintiff doing so. Having so contracted, there was no occasion for farther action on its part save upon the presentation of bills for such expenses, .and the plaintiff was in no way ■ relieved from its obligation to comply with the terms of the agreement by the circumstance of the city officials having put a different interpretation thereon by declaring that the city was under no obligation to pay such expenses. It did not owe plaintiff the duty of entering into a new contract construing that already adopted, but had the right to stand on the agreement as written, and, as in any event it was not bound to. pay the expense of removing the section of pipe until plaintiff had taken it from the well, there was no breach of which plaintiff can complain. But there is another reason for saying that no cause of action was stated. Immediately after the clause in controversy is a provision that the city “at the completion of the well will immediately pass upon the construction of said well, and, if satisfactory, will pay for the same according to.the tenor of this contract.” No argument is required to show that the removal of the pipe was involved in and essential to the digging of the well as proposed, and, conceding that defendant must have borne the expense of such removal, here is an express provision fixing the time for the payment when the well was completed.. Until then, the expense for having done so, according to the tenor of the contract, was not due. [431] 3. Trade usage: when not effective [430] Again, the price for digging the well was fixed in the contract at $4 per foot. This is the only expense to the city specified. If the clause be accorded the meaning alleged, the expense of removal was to be implied from its use, and was not expressly stated in the instrument. But [431] the last clause is a stipulation “that all expense incurred in the digging of well not herein specified . _ . _ ‘ shall be borne by party oi the second. Specify/5 according to the lexicographers, means to mention specifically or explicitly, to state in full and explicit terms or explicitly and in detail, name Expressly, distinctly and particularly. In Stewart v. Jaques, 77 Ga. 365 (3 S. E. 283, 4 Am. St. Rep. 86), it is said to mean “to point out, to particularize, to designate by words one thing from another.” As appears from all the authorities, a trade meaning nan not be given effect when this will defeat the plain language of the agreement. Here the contractor has expressly promised to bear all expenses not specified, and, as' none save $4 per foot for digging the well was specified in the instrument, he was entitled to no other. The petition alleges no breach of any obligation on the part of the city, and for this reason the demurrer was rightly sustained. — Affirmed.