Crass v. Scruggs & Co. , 115 Ala. 258 ( 1896 )

BRICKELL, C. J.

The action, in which the appellees were plaintiffs and the appellant defendant, was for work and labor done and performed by the plaintiffs at the request of the defendant, on the track of the Decatur, Chesapeake & New Orleans railroad. The complaint contained two counts, which correspond to the common counts in assumpsit for work and labor done and performed. The errors assigned are numerous, relating to the rulings of the court below on the extended and multiplied pleadings introduced in the course of the trial, the admission and rejection of evidence, ■and the giving or refusal of instructions to the jury. But the respective rights and liabilities of the parties are dependent on a few questions not of difficult solution. The first of which, and the more important, as the case is presented and has been argued, we propose to consider, is the construction and operation of the contract of July 23d, 1890, under which the greater part of the work was done.

Separating the contract into its component parts, the first clause is the undertaking of the plaintiffs to do the grading on designated sections of the track of the railroad, completing the work by the first day of September, 1890. The succeeding clause, is the engagement of the defendant, absolute and unconditional in its terms, to pay the plaintiffs specified prices for the work. The next clause, that from which the controversy arises, relates to the payment of these prices, and is in these words: “Payments based on engineer’s estimates, and to be made on the 15th of each month, or as soon thereafter, as said R. R. Company pays or causes to be paid the said J. T. Crass.” The last clause is a declaration that the time specified for the completion of the work, is of the essence of the contract.

The point upon which hinges the correctness of many of the rulings of the court below, is, whether payment to the plaintiffs of the promised compensation was conditional, dependent on payment by the railroad company to the defendant; or whether it was payable on the 15th of each month during the progress and on the completion of the work, or within a reasonable time thereafter for the company to make or cause payment to be made the defendant.

There is no doubt of the general rule, that a contract must be read and interpreted as a whole; all its provisions and stipulations must be regarded; and it is the duty of the court to consider the relations of the parties, their connection with the subject matter, and the circumstances under which it was made, And the construction must make the whole consistent, giving all the parts due weight.—Pollard v. Maddox, 28 Ala. 321; Comer v. Bank-head, 70 Ala. 136 ; Mason v. Ala. Iron Co., 73 Ala. 270. Tlie contract was drawn not without care, and imports that some contractual relation existed between the defendant and the railroad company, by which the company was to pay him • for the work, or to furnish him with the means of making payment. 'Whether there was such relation, and if it did not exist, whether the consequence was that the provision in reference to the postponement of payment to the plaintiffs, was not inoperative, was the matter of much contention in the court below. This is a phase of the case we do not deem it necessary to consider, for applying the general rules of construction we have stated, we do not doubt that the provision of the contract merely prescribes a time of payment, and not a condition upon which payment was dependent.

Can it be reasonably supposed it was contemplated, that the plaintiffs would devote their time, labor and means to the work, they were bound to complete within a particular period, without an absolute engagement from the defendant to pay them? There was no relation between the parties except that of employer and employes ; and it is to this relation, defining the services the plaintiffs were to render, and the compensation for the services the defendant was to make, the first and second clauses of the contract are devoted. The clauses are in terms as absolute and unconditional, as the subject matter permits ; and not more absolute and unconditional in respect to the one party than the other. The plaintiffs were bound to the performance of the work, without the expression of any condition dispensing with performance ; and without the expression of any condition, the defendant engaged to pay them a certain compensation. The contract is not divisible ; it is entire for the grading of the two sections ; and if it had been silent as to the time of payment for the work, payment could not have been demanded until the work was completed. This was known to the parties, and as the contract was drawn with care, the time of payment was not left to implication, but was the matter of express stipulation. And it must be observed, the stipulation speaks of payment, and of the time of payment, not of non-payment, nor in avoidance of the duty of paying. Any other construction would render the contract inharmonious in its several parts ; would place this stipulation in antagonism to the absolute engagement of the defendant to make payment of the compensation. The plaintiffs had no contract with the railroad company; were unknown to it; and to them the company owed no duty. The defendant had contractual relation with it, and from it expected to derive funds to meet his engagement to the plaintiffs; and it was time to realize these funds for which he was contracting, and not freedom from liability if they were not realized.

Similar contracts have been the subject of frequent construction, and the construction deemed best to give effect to the intention of the parties, has been that which avoids the conversion of an absolute into a conditional engagement, or which puts it into the power of a defendant at his mere option to pay, or not to pay. The recent case of Page v. Cook, 28 L. R. A. 759, is illustrative. The suit was on a note for the payment on demand of five hundred'dollars, “payable when payer and payee mutually agree.” As the parties had not agreed, it was insisted an action on the note could not be supported. The court said: “We think that it hardly could have been the intention of the parties to put it into the power of the defendant thus to avoid payment, and that it is more reasonable to construe it as meaning that it is payable when and after the payer ought reasonably to have agreed. * * * * * The promise to pay is absolute. It is only the time of payment which is left to future agreement. Evidently, it is expected, from the tenor of the note, that the parties will agree, and that a time will be fixed, and that the note will be paid. But no time is fixed within which the agreement is to be made. The law will, therefore, imply a reasonable time.” In McCarty v. Howell, 24 Ill. 341, a note payable four months after date, containing the clause, “or as soon as I shall be able to collect a certain note against Abram Davis,” was held to be due absolutely at four-months, or sooner if the Davis note was collected. The court said, unless this was the construction, no meaning could be given to the promise of payment at “four- months after date.” In Harlow v. Boswell, 15 Ill. 56, a notepayable “twelve months after date, * * * or as soon as I can sell the above amount of Allen’s Vegetable Tonic,” was deemed payable absolutely at twelve months. In Walters v. Mcbee, 1 Lea, (Tenn.) 364, a note of date March 19th, 1862, was payable in gold or silver, on or before January 1st, 1865, with this clause added : “This promise bo pay is on the condition, that' the banks of Tennessee have resumed specie payments at that time, if not, as soon thereafter as they do resume specie payments . ” As the banks had not resumed specie payments, it was insisted that the note was not payable ; in other woi'ds, that the condition upon which payment depended had not happened, and its happening was of the essence of liability on the note. The court, not doubting that parties could make conditional or absolute contracts, and that if they were conditional until the happening of the condition they could not be enforced, would not yield assent, notwithstanding the terms of the last clause of the note importing a condition, to the proposition, that it was destructive of the unequivocal promise to pay on or before the first day of January, 1865; and held, the payee, not insisting on payment in specie, could maintain an action on the note at any time after January 1, 1865. In Nunez v. Dantel, 19 Wall. 560, the action was upon an instrument acknowledging indebtedness for services rendered containing this clause : ‘ ‘This we will pay as soon as the crop can be sold, or the money raised from any other source, payable with interest.” The construction the instrument received was, that it was a promise to pay as soon as the crop was sold, or the money was received from any other source, or after the lapse of a reasonable time for the sale of the crop, or the derivation of the money from other sources ; that it was not intended if the crop was not raised, or was destroyed and never sold, or the money was not realized from other sources, that the debt should not be paid. “Such a result,” it was said, “would be a mockery of justice.” There are other authorities leading to the like conclusion, but we are content with a mere reference to them.—Eaton v. Yarborough, 19. Ga. 82 ; Lewis v. Tipton, 10 Ohio St. 88; s. c. 75 Am. Dec. 498; Crooker v. Holmes, 65 Me. 195 ; s. c. 20 Am. Rep. 687.

It is insisted that the parties construed the promise of payment as conditional — that the defendant was not under liability to pay the plaintiffs until the railroad company paid him. The facts upon which it is supposed this construction may be imputed to the plaintiffs are, that they recognized the defendant as having a contract with the railroad company — that the estimates of the work were made by the engineer of the company; and that before the commencement of this suit, near three years after the completion of the work, they made out no account against the defendant, making demand of its payment. This is a slender foundation on which to impute to the plaintiffs concurrence in a construction of the contract, converting the engagement of the defendant into a conditional promise, dependent on the action of the railroad company, over which the plaintiffs could have no control. When the words of a contract are ambiguous, of doubtful import, the construction given it by the parties in their mode of dealing under.it, or by their mutual and concurring acts, are aids, and sometimes conclusive in its judicial construction. But the meaning, the true interpretation of this contract, in the eye of the law is clear, and if there had been misconstruction of it by either party, the misconstruction ■would have been immaterial, save so far as it may have induced action by the other party.—Railroad Company v. Trimble, 10 Wall. 367. The ascertainment of the kind and quantity of work done by the plaintiffs, was essential . to the ascertainment of the measure of compensation to which they -were entitled ; and it was a stipulation of the contract that payment of it was to be based on the estimates of the engiueer of the railroad company. If the company failed to make payment to the defendant on the 15th of each month, he was entitled to a reasonable time thereafter in which to realize from them, and until the lapse of. this time, the plaintiffs could not demand payment from him. If the delay in making’the demand could properly be attributed to the plaintiffs, the delay exerted no influence on the conduct of the defendant, was incapable of working him injury, and is not to be deemed in recognition of a construction of the contract favorable to the defendant and destructive of their rights ; the most that can or ought to be said is, that the plaintiffs were inactive, when they could have been active. A reasonable time had elapsed, before the commencement of suit, for the railroad company to have made payment to the defendant, and it was for this time only, payment to the plaintiffs was deferred; on its expiration, the engagement of the defendant was as absolute, as it would have been if the company promptly had made payment to him on the 15th of each month. Upon this hypothesis, many of the rulings of the court below proceeded, the correctness of which the assignments of error draw in question. We will not prolong this opinion by a consideration of them seriatim,; for if there is technical error in any of them it was not of injury to the appellant.

The subsequent writing into which the parties entered, was strictly and purely tentative and executory. It contemplated the reorganization of the railroad company1", and its issue of first and second mortgage bonds, by which the line of railroad would be completed, and by or from which its outstanding creditors could obtain payment. Vitality, or obligation, it was not intended should be imparted to -whatever element of agreement or promise on the part of the plaintiffs, the writing may contain, until the reorganization and issue of the bonds were accomplished facts. The debt to the plaintiffs was in existence, past due, and it could not be discharged except by a release, or by satisfaction, for a valuable consideration. Mere promises by the defendant to pay it, could not add to its obligation ; nor could mere expressions of a willingness and intention on the part of the plaintiffs, at some time in the future, or upon the happening of some future event, to accept something else than money in payment, discharge or satisfy it. The statutes to which we are referred by the counsel for the appellant, (Code of 1886, §§ 2774-75), while working radical change of the rules of the common law, in some respects, in reference to releases or discharges, or composition of debts — changes which are pointed out. in Singleton v. Thomas, 73 Ala. 205; Smith v. Gayle, 68 Ala. 600 ; Cowan v. Sapp, 74 Ala. 44, and in other decisions— relate to executed transactions, and not to mere executory promises, dependent upon the doing or happening of some thing in the future. Nor have the statutes changed the elementary rule, that mere accord, a mere agreement for satisfaction, without performance, is of no operation upon a debt or demand. — 1 Am. & Eng. Encyc. of Law. (2d ed.), 420-22, and authorities cited. The writing has in it no words of release, nor words expressive of an intent to release the defendant from liability, and if it had contained such words, it would have been a nudum pactum, for a valuable consideration is as necessary to support a release, as to support any other contract.—20 Am. & Eng. Encyc. of Law, 744. There was no reorganization of the railroad company, and no issue of its bonds ; and there could be no delivery of the bonds to the plaintiffs as was contemplated. These were the events, the reorganization of the company, the issue and delivery of bonds to the plaintiffs, which alone could vitalize whatever element; of promise or agreement on the part of the plaintiffs the writing may contain.

On the request of the plaintiffs, the court instructed the jury, if they believed the evidence to find a verdict for the plaintiffs. There was no disputation that the plaintiffs had performed the work contracted for on sections 11 and 12 of the said road track, and that, according to the estimates of the engineer, it was of the value they claimed. As to these sections, the controversy was limited to the construction of the writings, and the court, observing the construction we have adopted, very properly could have given a much broader instruction if it. had been requested — an instruction, that if the evidence was believed, the plain tiffs were entitled to recover for the work done on section 11 and 12. As to the work done on section 13, there was a conflict in the evidence, and without invading the province of the jury, the general instruction in reference to a recovery for the work could not have been given. If the defendant was apprehensive that the instruction as given might mislead the jury, an instruction explanatory, or limiting it to the work on sections 11 and 12 should have been requested.

We find no error in the record of injury to the appellant, and the judgment must be affirmed.

Affirmed.