Interstate Construction Co. v. United States Fidelity & Guaranty Co.

Brooke, J. (after stating the facts). Counsel for appellant review the case in this court under a large number of assignments of error, grouped as follows: (1) Erroneous admission and exclusion of testimony and evidence. _ (2) Erroneous instructions to the jury and refusals to charge as requested. (3) Refusal to direct verdict for the plaintiff. (4) Was the plaintiff prejudiced by certain remarks. of counsel? [274] These will be considered in their order. 1. Under this head there are many assignments of error, but in oral argument only two were discussed. Those only will be considered as we are satisfied that the others are without merit. a. It is asserted first that it was prejudicial error for the court to admit in evidence the telegram of April 22d. This telegram contained the language: “You to start work about May 1st.” It is the contention of plaintiff that inasmuch as the formal contract provided that work by the subcontractors thereunder should be “commenced promptly upon notice,” the admission of the telegram in question was a violation of the rule that all antecedent negotiations must be held to be covered by the contract itself. In this connection it is to be noticed that the telegram and contract bear the same date, April 22, 1913; both were transmitted upon the same day, the contract by mail through Constantine, plaintiff’s agent, and the telegram directly. Both papers had reference to the same subject-matter and were parts of a single transaction and both may be examined for the purpose of ascertaining the agreement of the parties. That agreement would appear to be that the subcontractor should commence work promptly upon notice as stated in the contract and,— “about May 1st, as explained in the telegram.” There seems to be no question that where several instruments are made at one and the same time having relation to the same subject-matter they must be taken to be parts of one transaction and construed together for the purpose of showing the true contract between the parties. Sutton v. Beckwith, 68 Mich. 303; Singer Manfg. Co. v. Haines, 36 Mich. 385. See, also, Gould v. Magnolia Metal Co., 207 Ill. 172 (69 N. E. 896). We are of opinion that the telegram in ques [275] tion was admissible in evidence, but, whether admissible or not, its admission was apparently not harmful to plaintiff because the evidence clearly shows that the plaintiff expected and intended that defendants Montagne Brothers should commence the work about May 1st and that defendants were so notified by Constantine, plaintiff’s agent, on or about April 25, 1913. The ultimate fact having been abundantly proven by evidence dehors the telegram, its admission cannot have been prejudicial to plaintiff. 5. Defendants were permitted over objection to introduce evidence tending to show that labor in the vicinity of Franklin was comparatively cheap and plentiful during the spring and summer but that it was scarce and high during the fall and winter by reason of the fact that during the latter period the sugar campaign was on in that region, affording employment at good wages to large numbers of men. In this connection it should be borne in mind that defendants claimed the right to refuse performance of the contract by reason of the unwarranted and unreasonable delay on the part of plaintiff, which delay, had defendants performed, would have imposed upon defendants a material and unnecessary burden. This question was submitted to the jury by the court under an instruction that in order to justify the subcontractor’s refusal to perform the contract defendants must establish— “by a fair preponderance of the evidence in the case that the delays complained of due solely to the acts or neglect of the plaintiff, were so unjustifiable and unreasonable and inexcusable as to amount to a breach of the sub-contract on plaintiff’s part,” —and in this connection the court refused to instruct the jury as requested by plaintiff that in order to excuse the defendants from performance the delay must be— [276] “such an unreasonable delay as to amount to an intimation of an intention to .abandon and altogether refuse performance.” The court, however, did instruct the jury that the delay must have been— “such an unreasonable delay as to impose a material and unnecessary burden upon the Montagne Brothers.” The record shows conclusively that it was within the contemplation of all the parties that the work to be performed by the defendants under the sub-contract was to commence within a reasonable time after May 1st. It further shows that defendants prepared, at considerable expense, to commence performance shortly after that date. A delay of nearly three months ensued on account of plaintiffs failure to get the piling and foundation in proper shape to permit defendants to undertake the performance of their part of the contract. In the meantime labor conditions had materially changed or would change before it would be possible for the defendants to complete. Having elected to repudiate the contract, by reason of the antecedent breach thereof by the plaintiff we think it was competent for defendants to show that performance thereof under the changed conditions occasioned by the unwarranted delay would have imposed upon them an extraordinary and unwarranted burden. 2. It is asserted by counsel for plaintiff that the court erred in refusing certain requests to charge and in the charge as given. Plaintiffs argument under this head is based in part, perhaps mainly, upon the refusal of the court to charge that plaintiff's delay was— “such an unreasonable delay as to amount to an intimation of intention to abandon and altogether refuse performance,” [277] —and the case of West v. Bechtel, 125 Mich. 144 (51 L. R. A. 791) is cited in support. In that case the court considered the effect upon the contract of the failure of one party thereto to make payments on account of partial deliveries in accordance with its terms. It is, we think, clear that plaintiff was under obligation to do the pile driving, pit digging, and pile cutting before defendants were obliged to perform the part of the work covered by their contract. In other words, the performance of that part of the work to be performed by the plaintiff was a condition precedent to the undertaking of the performance of defendants’ work. This obligation rested upon plaintiff as certainly as though it had been so definitely expressed in the contract. Allamon v. Mayor of Albany, 43 Barb. (N. Y.) 33; Black v. Woodrow, 39 Md. 194; Morier v. Moran, 58 Ill. App. 235. A careful perusal of the charge in its entirety, and it must be so read, convinces us that plaintiff’s rights were fully protected and all proper requests either given or covered therein. 3. Our conclusions reached under 2 dispose of the assignments of error under this head. 4. An examination of the evidence upon which assignments of error under this head are based indicates that when appealed to the court held with counsel for plaintiff; in one instance saying: “The objection is sustained. I do not think that makes any difference and need not be considered by the jury.” We find no reversible error in the conduct of the trial in this respect. The judgment is affirmed. Bird, C. J., and Moore, Steere, Fellows, Stone, and Kuhn, JJ., concurred. The late Justice Ostrander took no part in this decision.