BBEYMAN V. ANN ARBOR B. CO.
BREYMAN et at v. ANN ARBOR R. CO. (Circuit Court, N. D. Ohio, W. D. June 25, 1897.)
CONSTRUCTION OF CONTRACT-PRINTED FORMS-REPUGNANT PROVISIONS.
In a contract for a railroad fill, made out on a printed form of construction contract used generally by the railroad company, where the material Is to be taken from known and prescribed distances, between named streets in a city, close to the place to be filled, and there is a written stipulation for a fixed price per square yard of earth, a further printed clause, allowing compensation for hauls in excess of 600 feet, may be rejected as repugnant,and as having been left in by oversight, where other written provisions seem to make it Inapplicable, and the parties, during the progress of the work, have ignored it. '
Under a filling contract which provides that all work done during each month shall be certified to by the railroad company's, general manager ItS , being In accordance with the contract,payment thereupon to be made for the same, less 10 per cent., to be reserved until, final completion of the work, the monthly certificates of the general manager are to be taken as correct and conclusive (In the absence of any charge of fraud, collusion, bad faith, mistake,or gross ,negligence), so as to preclude the conafter entirely ceasing work, from asserting for the first time a extra compensation for alleged overbauls of material. claim
Thijl action at law by Oharles H.;Breyman and George W. Tonson, contractors under the firm name of O. H. Breyman & Co. against the Ann Arbor Railroad Company, to recover money alleged to be due for work done under a contract for the construction of a fill.
The contract under which the work was done contained the following proVisions, among others: "First. The contractors agree that they will construct, build, and in very respect complete all the gradIng and other wor:k, to fiU the low lands lying between Lagrange ana Cherry streets and' the east line of Seneca street and a line drawn parallel to and one hundred (100) feet easterly therefrom, and any other embankments or fills which the first party may desire made between Magnolia and Cherry streets in the city of 'Toledo, Ohio; that they will take the material necessary for this work from any point which the engineer in charge may designate, between Manhattan road and Lagrange street, on or adjacent to the line of the railroad of the party of the firSt part; and that all borrow pits so made shall be left in such condition as to surface as the engineer in charge may direct. It is understood that all material so handled in this district shall be put in place, as directed' from time to time by the engineer in charge ofihe work, for and in consideration of fourteen (14) cents per cubic yard. 'The first party agrees on its part to fUrD.1sh the necessary rails, fastenings)' spikes, and ties, and put them on the ground adjacent to its roadbed near Elm street. First party also agrees to furnIsh, free of charge to the contractors, two engines, suitable for moving their dump cars; also fuel and supplies necessary to, operate these locomotives, but not help. All work shall be done in strict accordance with the aWlexed which are signed by the ,hereto, and are made a part of this agreement, and are hereby declared and accepted as an essential part the same. All of the said work to be done under the direction and InsP,eCtion of party of the first part's engineers to superintend. thesame,j!nd to the full satisfactioJl. and acceptance of party of the first general manager." SaId cohtract further provided as follows: "The the first part, III consideration of the true and faithful of the covenants and agreements made by contractor,
hereby covenants and agrees to payor cause to be paid to the contmctor, executors, or administrators, the rates and prices hereinafter named, to wit: "First. For ,clearing. .· . . . · .. · · . .· ·. ·· . . ·.. $ .····. c .. pel' acre. .. grubbing $ c.. .. .. I. solid rock excavation _... $ C·· " loose" " $ 'c.. " .. · · . . . . .·.. $.. . . . . c. . " .. hard pan II earth . .·. ... ... $ .·.... c14 .. cubic yard. "Second. And the party of the first part agrees to pay the contractor at the rates aforesaid monthly, on or about the fifteenth (15th) day of each month. for allwork done up to and including the last day of the preceding month, certified to by the party of the first part's general manager to be In accordance with this contract, less ten per centum of such amount, which percentage shall be withheld by the party of the first part until the final completion and acceptance of the work under the terms and agreements of this contract, when the percentage so retained, together with the palance due on the final estimate, shall be paid by the· party of the first part, upon the certificate of the party of the first part's general manager that the whole work provided for In this contract is completed and acceptably finished within the time specified." SaId contract was typewrItten, with blanks for Insertion of prices and pronouns referring to contractors, except that (1) blanks were filled with writing: (2) certain corrections were made In writing; (3) the words "chief engineer" were stricken out, and the words "general manager" Inserted; and (4) In paragraph II., clause first, all the words from "clearing" to "hard pan" were stricken out with pen and Ink. In and by said specifications it was provided as follows: "Haul to be made sIx hundred (8.00) feet without extra pay, and one (1) cent per cubIc yard to be paid for each 100 feet of haul thereafter." The specifications so made part of and annexed to said contract Were printed matter, except that the word "None" was written with ink under the word "Classification" on the margin, and the paragraph opposite such word "Classification" was stricken out wltl:! pen and ink. After setting out the contract, the plaintiffs, in their petition, made the follOWing allegations: "Under and In pursuance of said contract, plaintiffs did grading and other work required to fill the lands specified in said contract,ln pursuance of the terms thereof, and In accordance with the instructions and directions of the englpeel," Qt said railroad company in charge of said work, to, the amount of fifty-seven thousand three hundred and seven and 62/tOO (57,307.62) cubic yards of earth excavation, the contract price for which, at fourteen (14) cents per cubic yard, amounted to eight thousand and twenty-three and 1/ 100 dollars ($8,023.07). Of the eartb work so done fifty-five thousand and 'sixty-six and 41/too (55,066.47) cubic yards were hauled by plaintiffs more than six hundred (600) feet, and plaintiffs were entitled to receive therefor the sum of one cent (1) per cubIc yard for each one hundred (100) feet of haul in excess of six hundred (600) feet. And plaintiffs 'say that the number of cubic yards so hauled, and the distance the same was hauled in excess of llix hunared (600) feet, and the contract price thereof and therefor, is as follows: Overhaul. Number of CubIc Yards. Contract Price. 4,387 600 ft. $ 263.22 32,525 2,100 " 6,830.25 4,600 .. 5,6.62.47 2,604.73 6,150 .. 6,380 5,199.70 650 '1 596 38.74 1,350 II 885 119.47 6,950 .. 8,218.54 4,631 65,066.47 $18,274.65
ANN ARBOR ,R.CO.
"The work so done as aforesaid was done and performed within the time required by said contract, and was accepted and approved by said defendant, Its general manager, and engineer, and estimates of the number of cubic yards of earth excavation so made, and the grading and filling so done, were duly made by said defendant and delivered to plaintiffs. All said earth work was done, and said material taken, hauled, and deposited, within the district named in the first paragraph of said contract. On or about the 7th day of July, 1896, the said defendant directed plaintiffs to suspend the work untler said contract, and on the following day defendant withdrew the locomotives theretofore furnished under said contract, and no other work was done by plaintiffs thereunder, although plaintiffs were ready and willing to do all work which had been or might be required of them under said contract, and so continued to hold themselves in readiness to do said work until the 13th day of July, 1896; but defendant thereafter required no further work to be done by said plaintiffs under said contract. By reason of the premises there became due to said plaintiffs, prior to said 13th day of July, 1896, under said contract, for the work so done and performed by them, the sum of twenty· six thousand two hundred and ninety-seven and 72/100 dollars ($26,297.72). There has been paid by said defendant, for work so done under said con· tract, the sum of five thousand two hundred and ninety-two dollars ($5,292.00) and no more. There Is due the plaintiffs from said defendant, by reason of the premises, the sum of twenty-one thousand and five dollars and seventytwo cents ($21,005.72) and Interest tbereon from July 13, 1896. Wherefore plaintiffs pray judgment against said defendant for said sum of twenty-one thousand and five dollars and seventy-two cents ($21,005.72) and interest thereon from July 13, 1896."
Brown & Geddes, for plaintiffs. Alexander L. Smith and J. H. Doyle, for defendant. HAMMOND, J. (after stating the facts). The motion in this case must be granted, to strike out so much of the plaintiffs' petition as avers an overhaul beyond 600 feet of 55,066 cubic yards, and claim· ing compensation therefor at 1 cent per cubic yard for each and every 100 feet in excess of the 600 feet. This demand is made because of a prillted clause of the specifications allowing such compensation to contractors, which was not stricken out, or otherwise canceled' or modified, by the contract made between these parties, as were, other parts of printed form in use by the railroad company and its contractors. Outside of this dii>lputed clause of the contract, 14 cents per cubic yard were to be paid, and the amount due under the allowance is $8,023.07, of which $5,292 have been paid, leaving a balance of $2,731.07, also sued for by this petition, to which, however, is added the claim for $18,274.65 for the overhaul beyond the 600 feet, making a total demand of $21,005.72 and interest as yet due. The right to the $18,274.65 for the overhaul depends on a proper construction of the contract, and this motion is in the nature of a demurrer to the petition, which denies any such liability uuder the contract that is pleaded. The printed form is that used by the railroad company on which to write its 'contracts with its contractors, and evidently intended to be adapted to each occasion on which it is used, according to its requirements. Possibly it is a fair inference, also, though it is not essential to determine this, that it is usually adapted toconatruction contracts that embrace longer distances than those involved in this contract to construct between the streets of a city or town, or within such a place, and its specifications would indicate
such uses for it. But; however this may be, this contract defines a space between two streets in Toledo, which are relatively not very far apart, and designates, also, another relatively close-by street as the o.uter within which the material for the fills is to be taken. NoW, this fact or this situation should not be overlooked in construin.g this contract, nor any inferences of intention fairly deducible from it. The petition does not set forth the distances between these streets of the contracts, nor whether the overhauls sued for from distances, within '. the boundaries; but presumably they were,asthere is no allegation of any modification or agreement to go beyond them.' Therefore we assume that the overhauls are made of distances traversed 'Mtllin the territory during the process of excavation and filling up, but whether by cOlltinuous distance over 600 feet from the ,point of receiving the filling and the point of its delivery, or by aggregating the distances traversed in shifting about from one pla.ceto. another, doesuot appeal'by anything in the petition, or inferentially, unless it may be by specific reference to' distances to be implied from the names of the streets and their relation to each other as shown upon the plats of the city, as to which the court is not now advised. " 'But it is sufficient for the):lresent purpose tllat the contract relates to defined territory within the streets named in a city, and does not relate to country distances, within which material might have to be hauled for considerable stretches, as extraordinary conditions might sometimes demand, and to which conditions this printed overhaul clause,presumably, was intended to refer. There can be no denial ,of the contention of the plaintiffs that the written,. clauses of thls contract, specifying 14 cents per cubic yard as price of this work, cannot override the printed clause of the specifiGRtion allowing 1 cent per cubic, yard for each 100' feet over the 600 specified as the ordinary working distance, unless there is an irreconcilaole repugnance between thein. This is well settled by all the cases, and is a cardinal rule of cons4:uction of contracts,wills, and all other documents where repugnance is involved, It must be a fatal repugnance, in its irreconcilability; before any rule 'of construction is invoked, except the common one that all instruments must be construed accordiug.to their terJIls and tenor. Yet this quality of being reconciled does ,not depend vvholly upon a ,mere harmony of phraseplogy, nor does the opposing quality of' inconsistency or 'repugnancy:depend on such mere "erbal comparison or contrast when the twqd,isputed terms are placed in juxtaposition or structural relation in contract. IJ this were .therule, there is' no repugnancy here, 'because there, is noth,ing inconSIstent between a stipulation to pay 14 cents generally, an.d one to pay that sum when the hauling is within 600 feet, and more when it)s}Jeyondthat distance; and these on their words, may' slalid together, eV('ln when.the hauling ill narrow limits, and the o'Verhaul depends on an aggregation ofmillor distances actually traversed, as it may, within closely relatedstFeets of a city. But all are tp 'be construed every,where,llot solely with reference to their wordlS, butby. the words as il1terpreted by the, a.ud, the to be
BREYMAN V. ANN ARBORR. CO · <!
· '.. " , . i, ,_,'" :
That to be fairly is as ..part of contract as .that which the words as it is in the of statutes. Gelpcke v. City of Dubuque, 1 Wall. 220, 221. here was the const.ruction of a railroad filling; within,the city limits, and within a narrow territory, where long "hauls" would not he expected, and where, in drawing the written portions. of the contract, the word "haul" is out of the mind, and seemingly abandoned, and the word "handled" substituted, as more appropriate to fuat work. The language is:
"It is understood that all material so handled in this district shall be put in placEl' as directed from time to time by the engineer in,charge of the. work, for and in consideration of fourteen cents per cubic yard."
And, going back to see what "so handled" may mean, we find that:
"They will take the material necessary for this work from any point which the engineer may designate, between Manhattan road and Lagrange street, on or adjacent to the line of railroad," and "all borrow pits shall be left in such condition as to surface aathe engineer in charge shall direct."
It is this that is called "handling," in contemplation of shorter distances than "hauling" would naturally'imply. Something is also claimed on the score of inconsistency because of a provision in the written part of the contract that the railroad company agrees to furnish free of charge to the contractors engines and supplies necessRl'Y, except help, to operate the locomotives for moving the dump carts. Whether this provision would indicate that the 14 cents was the full price for "hauling" beyond the 600 feet of the printed clause is doubtful. It might be a part or' the obligation of the railroad company' at either or a,ny price. Proof might make it plain that this was a special provision for the "hauling" or "overhauling," but it is not a necessary implication from the contract itself, and no importance is attached to it in this judgment. But, taking the other consideration mentioned, and observing the form and appearance of the paper, partly written and partly printed, it seems a reasonable inference that the written parts embodied the agreement as to the price o'f the work, and the whole of it, and that the printed clause as to overhauls belongs ordinarily to a different class of work from this city work, like many of the other clauses of the specifications, and that in the of striking out this clause was inadvertently, and not deliberately, left in the instrument. It is conceded by the court, however, that if this alleged repugnancy of the two cla.uses stood alone as the basis of this judgment, the rule of allOWing written clauses to control printed clauses would be of doubtful application, at best. But, taking the fact that the narrow limitations of available territory, and the designation of the relatively close streets as the limits of the "haul," is a designation of all the "haul" that can be, it is apparently a repugnancy to provide for a generally indefinite distance that mayor may not be more than 600 feet, and left intentionally open, as to that, to cover contingencies that may arise. It was certain here that the fillings had to betaken within known and established distances, established by the and named in it. WhY,then, should there be any saving clause, which
85 FEDERAL REPoRTER.
the printed stipulation is certainly intended to be, about overnauls, as against known and established and specified distances? 'rhe court thinks the clause quite inapplicable, if not repugnant, to the other stipulation so carefully written in the contract. There is, however,another ground for this judgment, which, taken with that just considered, furnishes an altogether solid foundation for it. The case falls within Railroad 00. v. March, 114 U. S. 549, 5 Sup. Ot. 1035, and the large class of cases of which it is a type. The language in that case, it is true, is stronger than in this, because there was It special provision that the eS!timate of the eLgineer should be final and eonclusiye, while in this contract there is no such provision that the court finds, and counsel do not point out any such clause. The twelfth clause provides that all differences or controversies which arisE! under or in reference to this agreement and specifications, or its performance and nonperformancei or the work to which they relate, or in any way whatever pertaining to or connected with said work, shall be referred to the general manager of the railroad company, and his decision shall be final and conclusive. Under this, this controversy might be finally determined by the general manager, but nothing appears to that it has been, or that he has made any decision. There is no provision, as in the March OaS!e, supra, that the estimates of the general manager shall be final and conclqsive, but it to the same thing; for,apart from all that, the absence of any such claim until now, and tl).efact that the "overhaulS" have not been made in the monthly estimates that are provided for, is quite ,as a practical construction of the parties to the contract, that the I;lole price was the 14 cents of the written contract, and aids the implication of reuugnancy already made. It is said in argument that this does p.ot appear; but the absence of all averments in the petition upon the subject is, as against the pleader, aniPlplication tha.t he has had no such estimates in his favor, and, in the view of the provision for a decision of all controversies that there was never any controversy until by the general this suit was brought to be "referred" to him, whatever that may mean. This is a very str.ong evidence in· the pleading itself tha.t this overhaul claim is an afterthought,-that is, set up after the regular monthly estimates, in which the overhauling would from time to time occur,"'::"and the magnitude of this claim of over $18,000 for overhauls would seem to preclude the idea of any overlooking or postponement of the demand. if it was understood by the parties to be part of the contract, until the final estimate of the engineers provided for by yet another clause of the contract. The plaintiff had a right to collect all but 10 per cent. as the work progressed, and of this $18,000, for overhauls done from day to day and month to month, over $16,000 could have been collected, from month to month, asaecrued, if the parties had understood the contract to be as now set up; and, if it had been claimed from month to month, the claim would either have. been paid or provoked a controversy that the general manager would have had jurisdiction to settle, or at least, presumably, would have claimed to settle it, under this contract. All this is fair inference-
BREYMAN V. ANN ARBOR R. CO.
necessary implication-from this want of all averment in this petition of any fact showing any reason for not collecting the money, or bad of the faith on the part of the contract arbitrator or amount due. All pleadings are taken most strongly against the pleader, as well in regard to the significance of that which is absent from the pleading as that which is expressed in it. Moreover, the rule of the March Case, supra, does not wholly depend upon the provision, found in that particular contract, that the estimate shall be final and conclusive. Not at all. It is just as final and ,conclusive if the contract only designates some person who is to certify the fact to be determined, unless the petition or pleading sets up fraud, some kind of bad faith, gross. negligence, or mistake as an avoidance of the stipulation. In the two cases cited by Mr. Justice Harlan in the March Case, there was no .such provision as th::jt the estimates should be final and conclusive, but only a designation ora person to make them, and a provision that payment should be made and title pass when the certificate is made, and the estimate or decision as to amount is fixed. Kihlberg v. U. S., 97 U. S. 398; Sweeney v. U. S., 109 U. S. 618, 3 Sup. Ot. 344. Here the stipulation is that the railroad company agrees to pay the contractor for "all work done, up to and including the last day of the preceding month, certified to by the party Qf the first part's general manager to be in accordance with this contract." This is quite as imperative and conclusive as the stipulation found in the other cases. Ten per cent. is to be retained until the final completion and. acceptance of the work, and then "the percentage so retained, together with the balance due on the final estimate, shall be paid upon the certificate of the party of the first part's general manager that the whole work provided for in this contract is completed and acceptably finished within the time specified." There is another provision, for the sole benefit, seemingly, of the railroad company, that the engineer, "in computing the final estimate, and giving his final certificate, need not be bound by the preceding estimates and certificates, but such preceding estimates and certificates shall be held to be only approximative to the final estimate, and the said monthly estimates and certificates on unfinished work shall in no case be taken as an acceptance of the work, or a release of the contractor from responsibility therefrom, until the final estimate is made, and the work in its entirety is accepted as complete under this contract." Whatever benefit, if any, may inure to the contractor, under such a stipulation as this, for a revision of the estimates in his favor, and the correction of mistakes, surely he cannot claim that it keeps open a large and substantial part of the work, and, as appears by the figures here, an enormous relative proportion of the compensation for the whole,-$18,274.65 for "overhaul," as compared with $8,023.07 for the other parts of the work actually done under the estimates,-until this final estimate, or that the contractor can withhold any demand by the month, and await the final estimate to set up the claim for "overhau1." Be does not allege that he demanded an estimate from month to month of these overhauls, and that it was refused
"85 'FEDERM.: REPORTER.'
or postponed:;: not'thllt, when the :contract was terminated; no:ma'ttel' how, so that he 'Wasientitled to a final estimate; he' demaJidooa final estimate which them; nor that by: any bad ,faith or fraud they were'eidu(led; nor that by any mutual mistake of fact they were'omitted;nbr that by any gross neg'ligence they were overlooked; nor anythi!1-g to relieve against the stipulilti()n of the contract toesHmate :"ailrwork," and pay for "all work;" as it progresses from month to month; 'less thelO per cent. retained to cover contingencies 01' mistakes; and secUre fidelity in completion. In the absence' of Sb:rtie such like t.his, no suit can be maintllirted by the contractor on the contract. That which has been done and accepted is conclusive, and ,the amounts of work done and sums due are fixed by the certificates of adjUdication and judgment,' These cannot be reopened,except upon averments such as haV'e" been indicated, or the like ; and this rule applies as well to monthly estimates as to those which are final, in 'the sense that they pertain to the last work, and the 10 per cent. retention on that which wasiiltermediate, wht'rever the contract itself, directly or by necessary implication, provides, as this does; that some named person shall certify to the amount of work done and the sums due. The monthly certifioatesal'e j pro tanto, as conclusive for the monthly estimates astMtfor the final estimate i8 conclusive for what: remains and is finally done. It is "finaP' ohly in this sense: that'it pertains to the ending'tip of the work, and the 10 per cent. retained of intermediate estimates, and not in the sense that the contractor mav then reopen the older estimates, andex:tend them to include omitted"claims of this natu'1'e,which might and ought to have been then Claimed and estithecontl'act, to postpone such claims mated.: He has nO right, as these for "overhauls" for,the final estimate. ' Motion granted.
MUTUAL RESERVE FUND LIFE ASS'N V. DU BOIS. (CJrcult Court of Appeals, Ninth' CircuIt. No. 392. February 7, 1898.) ,
)111,10 I,lctionon a ofIife insurance,' which was submlttedupon an agreed statement of ,e'l'Idential facts from which ultImate facts were to be found, the trIal court determined that a notice of assessment was Insutliclent, thpstate laws,but made nospecla.l finding as to when the notice was : served; :what It contained, or to which of several classeS of Insurance comvaUle,s prpv,,ided for by the state, law,'s the defend,a,nt bel.onged., H cld, that since the statement ot facts amounted to a mere report of the evidence, which coulp' not, on proceedings In error, be examined In ol,"der to determine the 'law applicable thereto, the record, In the absence of a special finding of facts, presented no question for the determination of the appellate court. Raimoud v.Terrebonne pl,lXlil\h, 10 Sup. Ct. 57, 132 U. S. 192, followed.
ApPEAr.-REVIEW-SPEOtAL 'FINDINGS-'""STATEMENT OF FACTS.
Since, the opinion of the trial court is no part of the record, assignments of error dIrected to such opinion will not 'be considered on review.
In to tbe Circuit Court .of the United States for the Central Division of the District of Idaho. '