Hardie-Tynes Foundry & Machine Co. v. Glen Allen Oil Mill

Oali-ioon, L, delivered the opinion of the court. The declaration of the oil mill claims five dollars per diem as liquidated damages under an alleged contract to pay that sum on failure of appellant to ship a Corliss engine, etc., on August 15, 1902, for every day the shipment was delayed beyond that time. The proposition of the company, accepted by the oil mill May 22, 1902, and thus becoming a contract on its face complete, is on a printed blank, the spaces filled in with writing, and begins thus: “We propose to make and deliver - F. O. B. - August —, 1902, -, unless delayed by strikes, fires or manufacturing contingencies beyond our reasonable control,” the engine, etc., describing the subjects of the manufacture. This proposition is signed in print by the company, “by [in writing] James Hunter Smith,” and it is accepted in writing by the oil mill, signed “R. V. Grarner, chairman; P. L. Mann, president; Charles McGrinnis.” This contract is followed in typewriting by attached specifications of the work to be done, more elaborate than appear in the accepted proposition. At the end of these are typewritten specifications, which are also in the shape of a proposition, and which provide that the oil mill should prepare the foundation, and that the company should furnish a mechanic to erect, if desired, at [263] certain wages, etc., and they conclude thus, in typewriting: “Price and terms to be in accordance with our printed contract herewith attached and made a part of these specifications. Respectfully submitted, Hardie-Tynes Foundry & Machine Co.” Immediately under this we find, in manuscript, this, “It is understood that the above described engine will be shipped August 15, 1902; failing to do so, Hardie-Tynes Foundry & Machine Co. agrees to pay as forfeit five dollars per day for every day behind this time,” and this addendum is signed “Jas. Hunter Smith.” To the declaration a notice under the general issue was filed, setting up the defenses that the delay in shipment was occasioned by strikes, and that no damage was caused by the delay because the oil mill was not in condition to use it because of unpreparedness with necessary things for its erection and operation, until after it actually arrived on the ground. The court refused to permit the company to prove these defenses, and gave a peremptory instruction to the jury to find for the plaintiff, and thus two questions are evolved for our consideration — viz.: (1) Is the manuscript addition at the foot of the signed typewritten proposition independent of and uncontrolled by the reservation as to strikes, etc., in the proposition first signed and accepted? (2) Is the agreement in the manuscript addition, “to pay as forfeit five dollars per day,” an agreement for liquidated damages, or for a penalty as a limit to protect against losses actually caused by the delay? We answer the first question in the negative. The rule is universal that, “if the written and printed matter can possibly be reconciled, this will be done, it being presumed that the instrument contains no clauses not intended by the parties.” 11 Am. & Eng. Ency. Law, 21. Here the original paper was to ship “-August —, 1902,-, unless delayed by strikes,” etc., and the written addendum simply fixes a date in August, and provides for damages per diem for delay in shipment; and we think it should be read as providing for the damages in [264] addition to the first proposed contract, and for the exact day of shipment, all subject to the clause “unless delayed by strikes,” etc. In answer to the second question, we think the “five dollars per day” means liquidated damages, and was not designed as a penalty, notwithstanding the words “to pay as forfeit.” 3 Parsons on Contracts, 157, et seq.; 1 Sutherland on Damages, sec. 283, p. 716. In the latter author is found a very elaborate consideration of the shades of adjudication on the question. The decisions are numerous and various in views, and we will not protract this opinion in their discussion. Reversed and remanded.