H. M. Pfann & Co. v. J. C. Turner Cypress Lumber Co.

MAXEY, District Judge (after stating the facts as above). [1, 2] The decisive and only question, which we shall consider, arises upon the face of' the contract and its extension as agreed upon by the parties. Regarding the terms of the contract as ambiguous, the trial court admitted testimony to explain the situation of the parties and then submitted the construction of the contract to the determination of the jury. In failing to construe the contract itself and referring its construction to the jury we think the court committed error. If the contract, fairly construed, imposed no liability on the plaintiffs in error, there should have been a peremptory instruction in their favor. What construction then should be placed upon the instrument? To arrive at its proper meaning resort must be had to the phraseology of the original contract, since the subsequent agreement merely provided for its extension for two years ending November 1, 1903. The important words to be considered are the following: “The party of the first part agrees to sell and the party -of the second part agrees to my all of the lumber of the grades and kinds,” etc., “and also such further lumber as may be manufactured by them” from November 1, 1901, to November 1, 1903. It is contended by the lumber company that the words employed required Pfann & Co. to operate their plant for the period of two years, and upon their failure to do so a cause of action accrued to it for breach of contract. On the other hand, Pfann & Co. insist that they did not contract away their right to sell the plant and that they were obligated to deliver such lumber only as might be manufactured by them while the mill was in operation. We think that the latter construction is the proper one to place upon the contract. The words do not import a promise to keep the mill in operation, nor to manufacture any quantity of lumber during the two years. Dumber manufactured by the mill of the grades in the contract specified, it was the duty of Pfann & Co. to sell and deliver lo the Dumber Company at the contract price. But the words referred to cannot, by any reasonable rule of interpretation, be so construed as to divest Pfann & Co. of the right to dispose of their property in their own way and at any time deemed advantageous to themselves. To construe the words so as to deprive them of the right to sell the plant, there must he interpolated in the contract language which the parties themselves have failed to employ. In other words, we would thus make a contract for the parties which they have not made for themselves. A right so important as that of one to sell his own property should not be denied him unless the language employed clearly conveys that intention. [72] The views expressed are not without authority in their support. The case of Wemple v. Stewart, 22 Barb. (N. Y.) 154-161, is directly in point. At page 160 will be found the following language of the court: “But I think that the referee erred in his construction of the second clause of the contract. It seems to me that by that clause the defendants did not obligate themselves to saw at their mill any spruce plank. The obligation extended .no further than to require them, in case they elected to saw merchantable spruce plank at their mill during the ensuing winter, to deliver all such plank so sawed, at the yard of Gardinier & Van Denburgh. The agreement is to deliver all the merchantable spruce plank that they may saw, etc. These words are not promissory in their nature, except so far as relates to the delivery of plank which they shall saw during the ensuing winter; nor do they import a promise or undertaking to saw any particular, or any, quantity of merchantable spruce plank during the ensuing winter. To construe this clause of the contract as requiring the defendants to saw all the plank they should be able to saw the next winter, etc., would be making a new contract for the parties.” In Drake v. Vorse, 52 Iowa, 417, 418, 3 N. W. 465, 466, the contract construed was as follows: “I hereby agree to make all the school seat castings that A. S. Vorse may want during the year 1873 at six cents per pound. * * * Payment cash on delivery." At page 419 of 52 Iowa, at page 467 of 3 N. W., it was said by the court: “Counsel differ widely as to the obligation which it impos.es upon the defendant. It binds the plaintiff to make what castings the defendant may want. It does not expressly bind the defendant to anything except to pay in cash on delivery the prices specified. But conceding that it bound him to order and take of the plaintiff all the castings he should want, it could not, we think, have the effect to preclude him from entering into a partnership, nor would it become obligatory upon the firm. It was certainly the defendant’s privilege to discontinue business at any time when it should appear to him that his interest demanded it, and that, too, without becoming liable to the plaintiff in damages. He did discontinue business upon his individual account. After that he did not individually want or need any castings, and, as the firm was not bound to take any, we do not think that the defendant became liable.” See, also, McKeever v. Iron Co., 138 Pa. 184, 16 Atl. 97, 20 Atl. 938; Gwillim v. Daniell, 2 Crompton, Meeson & Roscoe, 61; Bailey v. Austrian, 19 Minn. 535 (Gil. 465). The words used in the present contract fall short of conveying the meaning insisted upon by the defendant in error. Under the contract, as we construe it, the plaintiffs in error had the right to sell their property without incurring liability for damages to the defendant in error. It follows that the judgment awarding damages to the latter for its breach is erroneous. It is therefore reversed, and the cause is remanded to the trial court with directions to proceed, upon a further hearing of the cause,, in accordance with law and the views herein expressed. Reversed and remanded.