Ricker v. Fairbanks , 40 Me. 43 ( 1855 )

Rice. J.

The contract in this case, between the principal defendants and the R. R. Co., is similar in its general provisions to one which was before the Court in the case of Williams v. Androscoggin & Kennebec R. R. Co., 36 Maine, 201.

In that case the Court say: — ■“ It was manifestly the intention of the parties that monthly estimates should be made of the work performed, and payment for three fourths the amount thereof, on presentation of the engineer’s certificate. The amount thus found, was due absolutely, and depended upon no contingency. There was nothing due and payable until the expiration of each month, and whether the one fourth which was reserved, should ever become payable, depended upon the contingency of the contract being fully performed ; for it was stipulated that if the parties of the first part should not well and truly perform all their covenants, any balance for work done on said road, which would have been due to said party of the first part, shall be forfeited, and become the right and property of the company.”

The contract under consideration varies from the one in the case cited in some of its details; one tenth the amount earned, only, being made a contingent reservation in this, instead of one fourth in that. This contract also contains the following provision, which does not appear to have been incorporated into the one in the case cited, to wit: — “ And it is hereby further understood and agreed, that the said party of the first part shall pay the laborers in their employ, and for materials used, monthly, and in case the said party of the first part fail to do so, the said corporation shall have full right and authority to retain in their hands for the payment of the workmen employed and materials used by said party of the first part, on the work contracted for, such an amount of each estimate as the engineer of said corporation may deem proper for that purpose.” This is a salutary provision, and so far as the company have made payments under it, and in accordance with its terms, they ought to be protected, and we perceive no reason why they should not bo permitted to retain the amount of $1049,20, being the amount paid to the laborers by the engineer, as appears by the disclosure.

There is another stipulation in the contract, under which it is contended that the whole sum found duo the contractors for work performed in June, was contingent, and has been forfeited to the company. It is as follows: — “In case it should appear to said engineer that the work has not progressed with sufficient rapidity, he shall have the power to withhold the estimate hereinafter provided for, or to detertermino that this contract has been abandoned, and in the event of such determination, this agreement on the part of said corporation shall become null and void, and any balance of money due, shall be forfeited by the party of the first part to the corporation.”

In the construction of contracts, reference should always be had to the intention of the parties. That intention is to be ascertained by taking into consideration the whole scope of the contract, and the situation of the parties thereto. This contract contains a stipulation for the payment of 90 per cent, of the whole amount earned in each month, on the presentation of the engineer’s certificate. That amount becomes due, absolutely, on the first day of each month. The sum then due, is determined* specifically, by the engineer’s certificate. The only contingency which can affect any portion of it, is the right which the corporation has to retain so much as may be necessary to pay the laborers, and for materials, under the provision above referred to.

Now it is obvious from the situation of the parties, as well as from the whole scope of the contract itself, that it was intended that the 90 per cent, stipulated to be paid monthly, should be so applied as to enable the contractor to prosecute and complete the work for which he had contracted. The construction contended for would put it in the power of the corporation, to embarrass the contractor by withholding his monthly payments, and then, in case he, by reason of such embarrassment, should fail to progress with the work with sufficient rapidity, by their engineer to determine that the work had been abandoned, and any balance due the contractor, however large, forfeited. A construction which should offer so large a premium for wrongdoing should not be adopted unless the language used will admit of no other reasonable explanation. Such explanation may be had by excluding the monthly estimates after they become due, from the operation of that provision. This we think is the fair construction of the contract when all its provisions are considered.

The result is, that the exceptions must be sustained, and Trustees charged.