City of Bridgeport v. T. A. Scott Co. ( 1920 )

Counsel for the defendants concede that their clients' defense to this action is to be found, if found it is, in the divisibility of the contract between the Scott Company and the city. If that contract embraced one entire undertaking, it is apparent that the provision contained in paragraph 15 of the specifications embodied in the contract, that "the contractor shall be held responsible for all loss and damage to work or material caused by rain, wind and fire, or any other cause and shall replace any such damaged work or material," fastens upon the Scott Company all responsibility for the storm damage, and obligates it to replace that portion of its construction which was destroyed or damaged by the action of the elements. If, on the other hand, the 1,700 feet of damaged masonry wall may be isolated from the rest of the work contracted to be done and treated by itself as an independent portion already completed of the larger work comprehended in the contract, a different situation would be presented. We are met, therefore, at the very threshold of the case with a fundamentally vital question, as to whether the contract was an entire and indivisible or a severable and divisible one.

"It is not always an easy matter to determine just what contracts are severable and what are not. The authorities agree that in determining whether a contract shall be treated as severable or as an entirety the intention of the parties will control, and this intention must be determined by a fair construction of the terms and provisions of the contract itself. In order to arrive at a correct construction, due regard must be had to the intention of the contracting parties as revealed by the language which they have employed, and to the subject-matter to which it has reference. . . . As a means of ascertaining the intention of the parties, various tests have been adopted. According to some authorities, the criterion is to be found in the question whether the whole quantity, service or thing — all as a whole — is of the essence of the contract. If it appears that the contract is to take the whole or none, the contract is entire. . . . The singleness or apportionability of the consideration appears, however, to be the principal test. If the consideration is single, the contract is entire; but if the consideration is expressly or by necessary implication apportioned, the contract is severable. The question is ordinarily determined by inquiring whether the contract embraces one or more subject-matters, whether the obligation is due at the same time to the same person, and whether the consideration is entire or apportioned. If the consideration to be paid is single and entire, the contract must be held to be entire, although the subject thereof may consist of several distinct and wholly independent items. The principle by which the courts are governed when they declare that a contract about several things, but with a single consideration in gross, is entire and not severable, is that it is impossible to affirm that the party making the contract would have consented to do so unless he had supposed that the rights to be acquired thereunder would extend to all the things in question." 6 R.C.L. p. 858, § 246.

The foregoing excerpt, with its omitted context, contains as clear and comprehensive a statement of principles of present pertinence as any one that has come under our observation. Its propositions are, however, by no means novel, but in full accord with those found in text books and cases, among which are the following: 2 Elliott on Contracts, § 1543; 2 Parsons on Contracts (9th Ed.) 517; 13 Corpus Juris, §§ 525-528; PacificTimber Co. v. Iowa Windmill Pump Co.,135 Iowa 308, 310, 112 N.W. 771; Wooten v. Walters,110 N.C. 251, 254, 14 S.E. 734, 736; Straus v. Yeager,48 Ind. App. 448, 456, 93 N.E. 877; Young ConantMfg. Co. v. Wakefield, 121 Mass. 91, 92.

Examining the contract before us in the light of these principles, it is well-nigh impossible to conclude other than that the intent of the parties was on the contractor's part to construct a sea-wall of a specified length, complete in all details thought necessary to make it serve as a suitable and serviceable barrier against the encroachments of the sea, and on the city's part to pay for such construction and nothing less. This is so whether one looks at the language in which the agreement is couched, its subject-matter, or its consideration. In so far as the language is concerned, its reading can leave no one in doubt that what the city was aiming to get and the contract undertaking to provide, was a serviceable and effective sea-wall. Into the composition of this wall, as it was designed, was to enter in the manner specified, masonry, riprap, fill and concrete, and certain units of each of these component parts, but the thing ultimately in view was a combination of all of these things, to wit, the "sea-wall" itself as a single entity capable of performing a desired office. Clearly, if language is an exponent of ideas, nothing less than this completed whole was in the contemplation of the parties. That was the subject-matter of the contract. That was what the contractor, in the language of the contract, agreed to build. In the specifications it appears that the sea-wall was to be constructed of specified materials and in a specified way, but the resultant was to be a sea-wall and not constituent masonry, riprap, fill, concrete, piles, etc.

If we turn to the matter of consideration we find the entirety of the contract still further emphasized. What the city was to pay was an entire amount, and one which could not be determined and was not payable until after the work in its entirety was completed. For no section, portion or unit of the work could the contractor receive full payment until he had constructed every other section, portion or unit. In other words, the right to receive payment was conditioned upon the completion of the wall in its entirety. City of Chicago v. Sexton, 115 Ill. 230, 240, 2 N.E. 263.

It does not militate against the entirety of the contract that the amount to be paid was left for ascertainment upon a unit price basis. Coburn v. Hartford,38 Conn. 290, 292; Barlow Mfg. Co. v. Stone,200 Mass. 158, 160, 86 N.E. 306; Shinn v. Bodine, 60 Pa. 182,185; City of Chicago v. Sexton, 115 Ill. 230, 240,2 N.E. 263; Bamberger Bros. v. Burrows, 145 Iowa 441,453, 124 N.W. 333. Neither does it that the contract provided for payments in instalments as the work progressed.Grassman v. Bonn, 32 N.J. Eq. 43, 49;Chamberlin v. Booth McLeroy, 135 Ga. 719, 720,70 S.E. 569; Quigley v. DeHaas, 82 Pa. 267, 274.

The Superior Court is advised to render its judgment for the plaintiff to recover $46,000, the agreed amount of the cost of repairing the damage occasioned by the storm.

In this opinion the other judges concurred.