Munson v. Osborn , 1882 Ill. App. LEXIS 253 ( 1882 )

Bailey, J.

Most of the questions presented by this appeal depend for their solution upon the proper construction to be given to the contract, by which Smackels, one of the plaintiffs, undertook to put a steam-engine and boiler into the building in which the defendant was carrying qn his business, and to furnish him steam and steam-power for heating his belt factory and running the machinery therein. This contract was executed by both Smackels and the defendant in duplicate, and it may be proper, before proceeding to discuss the terms of the contract itself, to notice the fact that, on comparing the two instruments,, there seems to be a slight variance in one respect in theif phraseology. In the instrument held by the defendant, it is provided that the said Smackels should furnish steam “ for heating such parts of said building as may be used by said Munson when required,” while in the instrument held by Smackels the provision is, that he should furnish steam “ for heating such parts of said building as me used by said Mun-son -when required.”

So far as these instruments vary in their phraseology, it would be improper to adopt the language of either to the exclusion of the other, as expressing the true intent of the parties, unless upon consideration of the entire instrument, it should be apparent that the language of one is more consistent with that intent than the other. Being executed at the same time and as parts of the same transaction, they must, in accordance with very familiar rules of interpretation, be construed together. One can not be regarded as more expressive of the intent of the parties than the other, hut they are entitled to equal faith and credit. The want of accuracy in one is not proven by the mere production of the other. The intent is to be arrived at by an examination of the terms and provisions which are identical in each, thus determining the objects and purposes contemplated. Morse v. Salisbury, 48 N. Y. 636.

One of the controverted questions in the case is, whether Smackels was bound by his contract to furnish the defendant with steam for heating those parts of his factory which, at the date of the contract, had not been furnished with steam-pipes or heated by steam. At that date the defendant, in carrying on his business, occupied and used the whole of the second and third stories of the' building described in the contract. The third.story was divided into two nearly equal parts by a cross partition, and the west part only was furnished with steam-pipes for heating, that being the defendant’s drying-room, the east part being used as a store-room and for cutting leather, and being heated, so far as it was heated at all, by a stove. After the contract was made, the defendant put steam-pipes into the east part and converted that also into a drying-room. The plaintiffs contend that Smackels was not obliged by his contract to furnish steam for heating this additional room, and was in no default for failing so to do, and the learned judge who presided at the trial below seems to have adopted the same view in his instructions to the jury.

The first paragraph of the contract, in which Smackels’ agreement on this subject is to be found, provides that Smackels should, within thirty days, put into' said building “ A steam engine and boiler of sufficient capacity to furnish steam and dower as may be required by said Munson, and will furnish steam as required by said Munson, as follows, to wit: steam for power to run the machinery, including the elevator now in said building, and owned or operated by said Munson; and also to drive an additional stretching machine and glue-pot and such other and further steam as' may be needed in the loft over the sales-room of said Munson, and also the steam for heating such parts of said building as may be [or are] used by said Munson when required.”

We find no difficulty in determining from this language the precise nature and extent of Smackels’ agreement, and we can not see that it makes any material difference whether we adopt the language of the instrument held by Smackels or of the one held by the defendant. The agreement is, first, to furnish" power to run thé machinery then in use, with an additional stretching machine and glue-pot; second, to furnish such further steam as might be needed in the leftover the sales-room; and, third, to furnish steam for heating such parts of the building as might be [or were] used by the defendant whenever required so to do by him. The defendant’s sales-room occupied the east half of the second story, consequently the loft over the sales-room was the east part of the third story, which the defendant afterwards furnished with steam-pipes and converted into a drying-room. Here, then, was an express agreement to furnish such steam as might be needed in that loft whenever the defendant .should require it. As the building was used and occupied at the date of the contract, no steam was or could be used for heating said loft, as there were no steam-pipes therb for that purpose. Clearly a use of steam beyond what was sufficient for heating the building as then used and occupied, was here contemplated by the parties.

Hot only is this so, but the agreement, as we have just seen, further provided that Smackels should furnish steam when required for heating such parts of the building as might be [or were] used by the defendant. At the date of the contr ict the defendant used all of the second and third stories of '■ he building, and up to the time he took possession of the emdne and boiler, he used and occupied neither move nor less. "U lii ihever of the duplicate instruments may be adopted as embodying the real contract between the parties, it is clear that this portion of the agreement obligated Smackels to furnish steam for heating any portion or all of the second and third stories whenever the defendant so required.

Hor do we find anything in the subsequent portions of the contract which necessitates any different construction. The second paragraph, it is true, provides that Smackels should furnish all the necessary connections between the steam-pipes and power of the defendant as then constructed, and the new engine and boiler. This determined the extent to which Smackels should be chargeable with the expense of constructing the apparatus for heating the defendant’s factory, but we can not see that it. limited in any way the defendant’s right to extend his system of pipes so as to make them capable of heating any portion of his establishment which he might desire to have heated.

In a subsequent part of the contract it agreed that, if the defendant should desire to run additional machmery, Smackels should furnish the power, and be paid extra therefor at a rate proportional to that agreed upon in the contract. This, however, had no bearing upon the defendant’s right to have his factory or any portion of it heated whenever he should see fit to require it.

But the court below, both in the instruction given on his own motion, and in his modification of the defendant’s first instruction, held that the extent of Smackels’ agreement was, to furnish to the defendant sufficient steam-power to run, the machinery owned and operated by him at the date of the contract, and also to operate an additional stretching machine and glue-pot, and also such further steam as might be needed by .the defendant in his business in the loft over his sales-room, and also steam sufficient for heating such parts of the building used and occupied by the defendant in his business, as the same was used and, occupied by him at the date of the contract, and if any additional heating should be required by the use of such additional stretching machine and glue-pot, to also furnish steam for the same. These instructions, by limiting the undertaking of Smackels to furnishing sufficient steam for heating the parts of the building occupied by the defendant, as the same were used and occupied by him at the date of the contract, imported into the contract a limitation wholly unwarranted by the terms and language of that instrument.

We are also of the opinion that the court below erred in the sixth instruction given to the jury at the instance of the plaintiffs. In that instruction it was held, that if the evidence showed that the engine and boiler in question were erected by. Smackels for the mutual benefit and service of himself and the defendant in carrying on their respective establishments; that such fact was known, consented to, and approved by the defendant at the time of making the contract; that after lie had taken possession of the engine and boiler and commenced to run it himself, he knew that the plaintiffs were financially responsible and able to pay the reasonable cost of supplying them with steam and power from said engine and boiler to run their establishment; that the engine and boiler were of sufficient capacity to supply both the plaintiffs and defendant with all the steam and power required by both; and that the defendant, without presenting to the plaintiffs a statement of such cost and demanding payment thereof, and before the plaintiffs had refused to pay the same, willfully cutoff the steam and power from the plaintiff’s establishment, so that they were prevented from carrying on their business, the jury should find the defendant guilty, even though they should believe from the evidence that he was justified in taking possession of the engine and boiler in the first instance.

It is a familiar rule that when parties have deliberately committed their contract to writing, the law conclusively presumes that all t¡he terms upon which they have agreed are embodied in the writing. It is true that in the construction of contracts, the court may look at cotemporaueous facts and circumstances. In this way it may, and in cases' where the language employed by the parties leaves their meaning in doubt, should, place itself in the situation of the contracting parties at the time the contract was made, and look at the occasion which gave rise to it, the relative position of the parties, and their obvious designs as to the objects to be accomplished; still these are only aids to the court in ascertaining the precise scope and meaning of the contract as it stands, but form no basis for importing into it or presuming terms or conditions not actually expressed in the writing.

The present contract makes no provision for the use by Smackels of any portion of the steam or power to be derived from his engine and boiler for heating or running his own establishment. Doubtless whatever steam or power remained after furnishing to the defendant all the contract required, belonged to Smaebels, and he had a right to do with it whatever he pleased. But this was not a right given by or reserved in the contract, but was wholly subordinate to the contract. The only stipulation from which it can be inferred that it was within the contemplation of the parties that the engine and boiler, even when operated by Smaebels, were to be run for the mutual benefit and service of the defendant and Smaebels, is the one which provides that, if in extreme cold weather Smacbels should notify the defendant of danger from frost, and the defendant should fail to authorize the beeping up steam at the joint proportional expense of Smacicéis and defendant, to prevent freezing, and any damage resulted to the defendant’s . pipes, it should be at his expense. But this comes far short of a reservation of a right to any portion of the steam or power.

But in that portion of the contract which empowered the defendant, in case of default on the part of Smaebels, to talcepossession of and run the engine and boiler, there is not only an entire absence of any stipulation on the part of the defendant to operate them for the joint benefit of both parties, but the terms of the contract, so far as they go, are directly the other way. The language used is as follows: “ In case Smachels shall fail to beep and perform his part of the contract, then said Munson is fully authorized to tabe possession and control of said engine and boiler and the part of the building where it is situated, and perform the service herein required free from molestation or contool of said Smaclcels.” The “ service ” required in the contract was to furnish the defendant with steam and steam-power for heating and running his factory, and that only. There was nowhere any requirement to furnish steam or power to Smaebels or the plaintiffs. That, then, the defendant clearly did not agree to do. Not only so, but his possession, for the purpose of performing the service stipulated for in the contract, was to be free from molestation or control on the part of Smaebels, It was in short, to be a possession for the defendant’s exclusive use.

Manifestly'", the object of the foregoing provision was, to secure the performance of the contract by Smaebels, and to afford the defendant a remedy in case of his default. It thus appears that the provision was partly penal and partly remedial in its nature. The parties fixed, as they had a right to fix, the consequences of Sniackels’ default, and the contract must be enforced as made. To hold that the defendant was bound, on taking possession of the engine and boiler, to operate them to their full capacity, so as not only to perform the service required by the contract, but also to produce a surplus of steam and steam-power for running the plaintiffs’ establishment, would not be enforcing the contract as the parties made it, but interpolating new and additional provisions to which they never gave their assent.

But there is another reason for holding the plaintiffs’ sixth instruction to be erroneous. At the time the contract was made and for a year thereafter, Smackels’ business was carried on in the same building in which the defendant’s factory was situated; afterward, on forming a copartnership with the other plaintiffs, he moved his establishment into another building a considerable distance away, and undertook, by means of connecting pipes and cables, to take from the same engine and boiler, steam and power for heating and running his establishment at its new location. Hot only so, but after establishing themselves in their new quarters, the plaintiffs also undertook to furnish Meyer Brothers & Co. steam and power for their factory. Ho w if it is to be held that, interpreting the contract in the light of contemporaneous facts and circumstances, the right of Smackels to use steam and power for running his own establishment must be implied, that implication, clearly, must be limited to the right to use them for conducting his business at the place and in the manner in which it was then carried on. The subsequent use of steam and power in another place and for carrying on an establishment which neither of the parties had in view at the time, and especially their use in carrying on the business of a third party under a contract subsequently made, were no part of the contemporaneous facts and circumstances, and can not be deemed to have been within the contemplation of the parties at the time the contract was made. The instruction is erroneous, not only in attempting .to raise an implied undertaking on the part of the defendant, to furnish the plaintiffs with steam and power in their factory in 'its new location, but also in wholly ignoring the fact that a portion of the steam and power were being used to operate the factory of Meyer Brothers & Co., and that the connections of these two factories with the engine were such, that the defendant was unable to shut off steam and power from one, without shutting it off at the same time from both.

For the reasons already given, we think the court erred in refusing the defendant’s seventh instruction. The substance of that instruction is, that if Smackels had failed to perform his part of the contract, the defendant was justified in taking-possession and control of the engine and boiler as provided in the contract, and was only required to run them so as to furnish the steam therein required, and was not bound to furnish power or steam for the building on Canal street.

The eighth instruction asked by the defendant, should also have been given. It was to the effect that, if Smackels failed to perform his part of the contract, and that defendant, in consequence, took peaceable possession and control of the engine and boiler, and ran the same, he can not be held liable as a trespasser for so doing. We think it clear that by taking possession and control of the engine and boiler, in the manner here supposed, he was merely exercising a right given him by his contract, and did not thereby become a trespasser.

For the errors in the instructions to the jury above pointed out, the judgment will he reversed and the cause remanded.

Judgment reversed.