Nute v. American Glucose Co.

The opinion of the court was delivered by Allkn, J. : [233] L olfflccwuons. [232] A motion is made to dismiss the petition in error on various grounds, none of which, however, are tenable. We find the petition in error sufficient, and while the clerk's certificate contains some things that are unnecessary, it is not defective. [233] It is also insisted that the only error complained of is in sustaining an objection to testimony, and, as there is no bill of exceptions in the case, that the error has not been made to appear of record. An objection to the introduction of any testimony on the ground that the petition does not state facts sufficient to constitute a cause of action, raises only an issue of law. (Water-Supply Co. v. Dodge City, ante, p. 60 ; 39 Pac. Rep. 219.) It was held in the Case cited that no motion for a new trial was needed for the purpose of reviewing the ruling of the court on such an objection. Rulings of the court on issues of law are properly entered on the journal, as was done in this case, and no bill of exceptions is necessary. Section 705 of the code provides : “On the journal shall be entered the proceedings of the court each day, and all orders of the judge in vacation or at chambers, and also 'all judgments entered on confession or default.” Very clearly a ruling of the court on such an objection, which completely disposes of the case and ends the trial, is a proceeding that is required to be entered on the journal. The main question in this case is whether the defendant company was bound to operate its factory at Leavenworth from October 10, 1889, to April 1, 1890, unless prevented by fire, explosion, or accident. Many authorities are cited, and many general rules are quoted on the subject of the construction of contracts. It would be a tedious and bootless task to enter into an extended consideration of the many rules to which our attention is called, which it is claimed should be observed in determining the effect of this contract. All of them amount to but little more than the proposition that it is the duty of the court to ascertain, from the language made use of by the parties, [234] Avliat their agreement really was, and give it effect according to their mutual intentions. We do not think it necessary, either, to discuss at length the question as to how far oral evidence might be introduced for the purpose of establishing a cause of action under the plaintiffs’ petition. Generally speaking, the only purpose of such testimony, as an aid to the construction of a contract, is to afford the court information concerning the subject-matter of the contract and the situation of the parties, so that it may view the instrument in the light of such knowledge as the parties themselves had of surrounding circumstances. Such evidence is not to be received, however, for the purpose of supplying defects or omissions in the contract where there is no claim made that it does not truly embody the agreement of the parties. In this case the plaintiffs rely on the -written agreement as the foundation of their cause of action. They must stand or fall by its terms. For the defendant it is contended that the contract is drawn with great care and attention to detail; that nothing is to be inferred that is not expressed; that where the parties have carefully considered the agreement into which they have entered, have selected the terms used after careful consideration, have minutely provided for many contingencies, that no room is left for implication, and no presumptions should be indulged in which will have the effect of imposing on either party a burden which he has not expressly assumed. It is said that nowhere in the contract can there be found an express agreement by the defendant to operate its factory during the time covered by the contract; that the defendant contracted to sell no more sugar-meal feed than should be produced in its Leavenworth factory ; that the only limitation with reference to quan [235] tity is that of 3,000 barrels per week, more than which quantity the plaintiff was under no obligation to take, but that the defendant was not bound to produce 3,000 barrels per week, nor any other quantity ; that it appeal’s that corn-meal feed was but a by-product of minor importance in its factory, a barrel being the amount produced from 7i bushels of corn, for which, under the contract, the plaintiffs were to pay but 17-J-•cents ; that it cannot be presumed that the defendant would have obligated itself to continue to operate its factory merely for the purpose of complying with its contract for this comparatively insignificant product. It must be conceded that there is much force in this reasoning. To the trial court it appeared convincing. We are not, however, satisfied with it. The defendant was operating a factory at Leavenworth. This •contract is for a very definite period, from the morning of one day to the morning of another day named. The only hint of a possible stoppage or suspension of the factory is that contained in the following paragraph : ‘ ‘ In case of the suspension of the manufacture of feed, in whole or in part in the factory of the party of the first part, by reason of fire or explosion or accident of any kind in the said works, or the machinery contained therein, the party of the first part shall not be liable in damages to the party of the second part for failure to deliver feed during such suspension of the production of feed.” [238] 3' causeo?*-stated.’ [235] If it were not intended to bind the defendant to operate its factory, or to produce feed, this section would seem to be entirely meaningless. To break the force of the inference naturally arising from this provision, it is ingeniously argued by counsel that this provision was not made for the purpose of exempting the defendant from liability for failure to. produce [236] feed, but to relieve it from the necessity of delivering feed which had been theretofore manufactured. We are impressed rather with the ingenuity of the argument tli an with its force. We do not think that the word ‘ ‘ deliver ’ ’ is to be singled out as the one on which the whole meaning of the paragraph turns, but that the fair and reasonable interpretation of the clause is that, if the defendant was prevented from manufacturing feed by fire, explosion, or accident, the plaintiffs should not recover damages because the defendant was prevented by such misfortune from complying with its contract. Thé contract, in its general scope, does not contemplate the production and storage by the defendant of the feed, but rather that it shall be promptly disposed of, and the necessity for so doing is recognized by that provision of the contract under which the defendant agrees' to run into the sewer or otherwise destroy whatever the plaintiffs should be unable to use. By the terms of the contract, as construed by the defendant, if no feed was produced, the defendant was not bound to deliver. Its obligation to deliver depended entirely on production. It is provided in the contract that the defendant shall furnish a man to sell and deliver feed at its factory to the retail trade in Leavenworth “during the life of this contract/’ and that the plaintiffs shall pay him $30 per month. The plaintiff assumed all outstanding retail tickets issued by the defendant, not exceeding 1,200 barrels. Can it be said that the defendant was under no obligations to produce even this? Provision was carefully made for shipments, for drafts on consignees, and for monthly settlements. Beyond all question, the plaintiffs were obligated to take and pay for 3,000 barrels per week, if so much was produced, whether they succeeded in [237] selling the same to customers, or allowed the defendant to run it into the sewer. Beyond that quantity, they'were privileged to take whatever the factory produced, but were not bound to do so. It is evident from the terms of the contract that it would be neces- % sary for the plaintiffs to incur expense, and to make needed arrangements for the sale of this product. The provisions with reference to the quantity shows that the parties did not contemplate that the whole product could be advantageously disposed of. The defendant was assured, however, of a market for 8,000 barrels per week. Is it possible that the plaintiffs ■were not assured of any supply whatever, and that, after having incurred any amount of expense that might be necessary in finding a market for the product, it was entirely optional with the defendant whether it would operate its factory at all or not ? At the time the contract -was entered into, the defendant was operating its factory, and continued to so operate it until about the middle of January following. If it was bound to operate it one week, it was bound to operate it the full time. But it is said that a product of one barrel per day would have been a full compliance with the contract, and that even if it be conceded that an obligation rested on the defendant to operate its factory, still that substantial damages cannot be awarded because the defendant was not bound to more than a nominal compliance with the contract. On the other hand, the plaintiffs claim that they are entitled to have their damages assessed on the basis of 8,000 barrels per week ; that if the defendant had operated its factory, they were bound to take so much, and had the privilege of taking more if produced ; that the measure of their damages ought to be the amount they could have been compelled to pay [238] for. The contract will not bear this interpretation. It is perfectly clear that the defendant was not bound to produce 3,000 barrels per week. We think the defendant was bound, however, to operate its factory in good faith; that the contract clearly contemplated that it should do so. If it had so operated, it would have produced a substantial quantity of feed. IIow much would have been so produced, we are in no position to determine. Such a factory,, however, cannot be operated in good faith and in a reasonable manner without incurring great expense and making a corresponding output. It would be folly to operate a large establishment merely for the purpose of making a nominal product. On the other hand, it is clear that the defendant did not bind itself to make the largest possible output. We think the plaintiffs are entitled to recover such damages as they are able to show resulted to them from the failure of the defendant to operate its factory in a reasonable manner, but that such damages should be computed on the least quantity that would have been produced in case the factory had been operated in good faith. The court erred in sustaining the objection to any testimony. The judgment is reversed, and the case remanded for further proceedings in accordance with the views above expressed. All the Justices concurring.