Breen v. Security Bridge Co.

MR. JUSTICE GALEN delivered the opinion of the court. In this action plaintiffs seek to recover $26,200 as damages for breach of contract in the construction of “a pile trestle and combination span to support a steel flume over the Clarke Fork River, to carry off the waters of the Badger Ditch,” for use in the irrigation of crops grown on plaintiffs’ lands. It appears that the plaintiffs owned and were in the actual possession of a large quantity of land located in Park county, Wyoming, between 1,600 and 1,700 acres of which were agri [98] cultural in character, and upon which crops could be suceess fully produced only by artificial irrigation. In the fall of 1916 they entered into negotiations with the defendant company for the erection of a trestle and flume, and, the defendant having prepared and submitted proposed plans and specifications for the work, a written contract was entered into between the parties on January 23, 1917, for its construction. By such contract the defendant agreed “to furnish the dimension lumber, hardware and steel for combination trusses, and to construct and complete ready for the placing of the steel flume a pile trestle and combination span over the Clarke Fork River, to carry the waters of the Badger Ditch, according to the plans and specifications which are hereto annexed and made a part of this contract”; the plaintiffs being required “to furnish the piles, rough timbers, concrete material, hauling material to site of structure, team work, and the flume proper”; the defendant “to erect the steel flume and concrete abutment.” It is then recited that the defendant “hereby guarantees, the workmanship and material, except the steel flume material, in this structure to do the work for which the structure is intended, providing that no failure is caused by unusual action of the elements, for period of five years from date.” The work was fully completed in March, 1917, and in the season of 1917 the plaintiffs had seeded upon their lands with small grain and alfalfa about 800 acres, which was irrigated by means of the water conveyed by use of such flume. About the 14th of June, 1917, the trestle, span and steel flume were washed out by high water, there being no other unusual action of the elements, in consequence of which the flow of such water was stopped, preventing the plaintiffs from irrigating their crops, with resulting damages. Upon issue joined the case was tried to a jury, and, at the conclusion of the evidence introduced by the plaintiffs a nonsuit was granted on defendant’s motion, upon which judgment was entered. Subsequently a motion for a new trial was granted, and the cause is before us on appeal from the order granting a new trial. [99] The only question presented for consideration is whether the court erred in granting a new trial. Plaintiffs’ right of recovery is predicated entirely upon breach of contract, dependent solely upon an interpretation of the language employed. The decisive point is: Did the parties intend a warranty of the workmanship and materials used by the defendant in the construction, or a guaranty of the structure to do the work for which it was intended? Defendant’s learned counsel contend: “The language of the contract very plainly limits the warranty to the workmanship and material. * * * The defendant did not contract to build a structure which would be sufficient for the purpose for which it was intended. It contracted to build a structure in accordance with the plans and specifications therefor, and to employ therein competent workmanship and good and proper quality of materials. And how can it reasonably be argued that the parties intended that the defendant should warrant anything more than it contracted? * * * There is no proof that they were defective. The proof is that the structure collapsed, and the proof tends to further show that it collapsed as the result of high water. But, so far as the record discloses, it may be assumed as logically and reasonably that it collapsed because the timbers were too light as that it collapsed because of defective workmanship and materials.” The fallacy of defendant’s premise is apparent from the mere statement thereof. Applied to the facts, and stripped of surplus verbiage, the defendant clearly guaranteed the workmanship and material in the structure to do the work for which the structure was intended for five years. In our opinion, the language amounts simply and plainly to a warranty that the completed structure would accomplish the purpose for which it was erected for a period of five years. “Unusual action of the elements” alone is excepted from the words of guaranty, plainly indicative that the structure would withstand, with this one exception. This exception may, and doubtless did, have reference to lightning, earthquakes or the like, but not to high water, or floods, as the de [100] fendant contracted with full knowledge of the likelihood thereof. The trestle and flume crossed a swiftly flowing mountain stream, the waters of which were annually greatly augmented by rain and melting snow; and in its answer the defendant admits that the “river is subject to annual freshets, changes and floods, and that this fact was known” to it at the time of the execution of the contract. The defendant prepared the plans and specifications for the work, and the contract not only makes specific reference thereto as a part thereof, but provides for construction in accordance therewith. With full knowledge of its own plans and design for the work, the defendant warranted the structure to do the work for which it was intended for a period of five years. Clearly it was the medium desired and intended to accomplish plaintiffs-’ purpose which was guaranteed, i. e., the completed structure, not alone the component materials and workmanship. Plaintiffs’ purpose was to convey water for irrigating purposes across Clarke Fork River, and this could not be accomplished without an adequate flume in place. The guaranty was of the efficiency of the whole, rather than its parts. If this be not the correct interpretation of the language employed, then we inquire, Why use the words “to do the work for which the structure is intended”? Defendant’s liability to respond in damages for failure of the work to stand is manifest. Its attempted evasion of its contractual obligation is predicated on a most flimsy pretext. Defendant made its own bargain, and, even though the contract may now appear unwise or burdensome, it must be held to performance. (State Bank of Darby v. Pew, 59 Mont. 144, 195 Pac. 852; Frank v. Butte & Boulder Min. & Lbr. Co., 48 Mont. 83, 135 Pac. 904; McCrimmon v. Murray, 43 Mont. 457, 117 Pac. 73.) The rule laid down in the case of State Bank of Darby v. Pew, supra, respecting the obligation of a contractor on a warranty of the sufficiency of the structure when completed, is much more forcible in application in the present instance. Where possible. courts must enforce contracts as made by the parties, [101] and, as no ambiguity or uncertainty appears respecting defendant’s obligation, the order is affirmed. Affirmed. Mr. Chief Justice Callaway and Associate Justices Cooper, Holloway and Stark concur.