Seelig v. Phillips County

Wood, J., (after stating the facts). Appellants contend that the court erred in submitting to the jury the issue as to whether or not the contract required the contractors to install the heating, plumbing and electric wiring, and in admitting the oral testimony tending to show that it was the intention of the parties to the contract that this work should be included therein. The certified copy of what is designated in the -record as the contract consists of -thirteen articles. In the first article, the contractors, for -the consideration of $249,000, to be paid by the county, “agree to supply all the material and perform, in a practical manner, all of the work embraced in the adopted Phillips County, Arkansas, courthouse and jail building plans and specifications, as qualified and changed by the addenda thereto, the proposals of the contractors, and the provisions of this contract, which addenda, proposal, plans and specifications are hereby made a part of this contract.” In none of the articles of the general contract is there a provision to the effect that the heating, plumbing and electric work is not included. There is, however, in the plans and specifications, under the head of “General Conditions,” and under the special title, “Heating, plumbing, etc., ’ ’ this provision: ‘ ‘ The heating, plumbing, electrical work and furniture will not be included in the general contract.” But there is, under the same head of “General Conditions, ’ ’ this further provision: “ It is intended that the drawings and specifications shall include everything requisite and necessary to the proper completion and entire finishing of the building, notwithstanding every item involved in the work is not particularly mentioned. The work, when finished, is to be turned over in a perfect and undamaged state.” Article 4 of the contract contains, among other things, the following provision: “This contract and the proposal pursuant to which it has been executed, shall take precedence over the specifications and plans in all matters wherein there shall seem to be any conflict. ’ •' Now, the contract, as we have seen, in its first article, requires the contractors to supply all the material and perform all the work embraced in the plans and specifications. There is also, in article 2, the provision that “whenever any question .shall arise, the decision of the architect shall control as to the correct interpretation of the plans and specifications during the execution of the work,” subject to the right of the contractors to challenge his decision and to settle the question, in case of disagreement between them as to whether the work constituted extras, by arbitration. Gibb, the architect, testified that it was his belief “that L. R. "Wright & Co. had the contract for the building complete, which included the installation of plumbing, heating and wiring, ’ ’ and he accordingly notified the contractors to proceed to do this work. In answer to this notification, the contractors protested that they were not required to do this work, but they, nevertheless, proceeded to do it, stating that they would expect pay for it as extras; but they did not demand that the controversy between them and the architect on this point be settled, as the contract provides, by Arbitration. Under the contract, as we have seen, the contractors w.ere to supply “all the material” and to perform “all the work” called for by the plans and specifications, and the proposal of the contractors was to “furnish all labor and material to erect and complete the new courthouse and jail in accordance with plans and specifications.” The building was not complete without the plumbing, heating and electric wiring. The contract required, and the proposal on the part of the contractors was to complete the building according to the plans and specifications. It could hardly be said that the provision, towit: “That the heating, plumbing, electrical work and furniture will not be included in the general contract, sets forth any plans or specifications for work to be done on the building. This provision is merely a declaration that these things shall not be included in the general contract. But the recitals in the general contract and the proposal pursuant to which it was executed show that the contractors were to complete the building. So there is at least a seeming conflict between the recital that the “heating, plumbing and electrical work” are not to be included in the general contract and the provision of the contract and the proposal which show that they are to be included. The contract provides that in case of such seeming conflict, the contract and the proposal must prevail. (1) We have thus set forth all of these provisions and commented upon them for the purpose of showing that there was at least sufficient ambiguity in the contract to justify the court in submitting the issue to the jury as to whether it was the intention of the parties to the contract to include the plumbing, heating and electrical work, and to warrant the court in admitting the oral testimony to show that such was their intention. The recent case of Gunter & Sawyers v. Road Improvement District No. 1 of Grant County, 189 S. W. 53, 125 Ark. 492, upon which counsel for appellants rely, is not in conflict with this holding, for there the written contract sued on was plain and unambiguous. In that case, quoting from Barry-Wehmiller Machinery Co. v. Thompson, 83 Ark. 283, we said: ‘ ‘ Antecedent propositions, correspondence, and prior writings, as well as oral statements and representations, are deemed to be merged into tbe written contract which concerns the subject-matter of such antecedent negotiations, when it is free from ambiguity and complete.” But it is equally well settled that, “Where the provisions of a written contract are apparently conflicting, parol evidence is admissible to show the subject-matter of the agreement, the circumstances surrounding the parties at the time it was made, and their subsequent conduct under it, as a means of correctly interpreting the language employed.” Watkins v. Greer, 52 Ark. 65. And, “Where a contract is ambiguous, parol evidence is admissible to explain the situation of the parties, so that the court may correctly apply the language used to the things described. ” Wood v. Kelsey, 90 Ark. 272. See, also, Montgomery v. Ark. Cold Storage & Ice Co., 93 Ark. 191; Livingston v. Pugsley, 124 Ark. 432. In Jones v. Lewis, 89 Ark. 368, we -said: ‘1 Where the intention of the parties to a written contract does not clearly appear upon its face, the determination of the question.should be left to the jury.” Citing, Massey v. Dixon, 81 Ark. 337. See, also, Haney v. Caldwell, 35 Ark. 156. (2) Moreover, the court was correct in its rulings for another reason. Under the Constitution the county court had exclusive original jurisdiction in the matter of disbursing money for county purposes. Const., art. 7, sec. 28. It had plenary power to “audit, settle and direct the payment of all demands against the'county.” Kirby’s Digest, section 1375, act'February 5, 1875. The statute provides that all persons having demands against any county shall present the same, duly verified, according to law, to the county court of such county for allowance or rejection. From the order of the county court thereon appeal may be prosecuted as now provided by law. Kirby’s Digest, section 988. This act provides a special statutory proceeding by which claims against the county are to be allowed or rejected, and the county court, having exclusive jurisdiction over the subject-matter, could and should inquire whether the claim presented is just and correct, and in determining that issue should apply the principles of law involved. If the issue be one requiring the application of. the principles of equity in its solution, then the county court, having plenary jurisdiction over the subject-matter, must apply those principles, If only the rules of law are involved, then the court must decide it according to those rules. Therefore, even if we are mistaken in holding that the contract is ambiguous on its face, and even if the contract shows on its face that the plumbing, heating and electric wiring is not embraced in the contract, nevertheless the undisputed proof showed that it was the intention of both parties to the contract to include it, and if not included it was a mutual mistake. In this state of the record,' the county in an adversary proceeding, would have had the right to go into a court of equity and have the contract reformed so as to express the intention of the parties to it. The county court, while not possessing equity jurisdiction, in this special proceeding could determine the issue before it according to the principles of equity involved and treat the contract as. though it had been reformed, and thus decide the issue as to the correctness of appellants’ claim according to the real intention of the parties to the contract. Although this was a special proceeding in a court of law, the decision on the issue, from the above viewpoint, required the application of the equitable doctrine of reformation so as to correct the mutual mistake of the parties and give effect to the contract as the parties intended it. Appellants contend that the court erred in not allowing the sum of $195, the cost of printing the warrants issued by Phillips County in payment of the work done by the contractors. But John I. Moore testified: “If the contractors had been willing to accept the ordinary form of county warrants, there would have been no necessity of having them printed, but a different form of scrip was required by the bond buyers, and it was agreed that all of this work was to be gotten up at the expense of the contractors. It is my recollection that they were to pay the cost of having them printed. ” This testimony is undisputed and it clearly establishes the fact that the contractors were not entitled to be reimbursed the amount paid by them for printing the warrants. The judgment is correct, and it is therefore affirmed.