In re Iron Bay Co. ( 1894 )

Mitchell, J.

This appeal involves merely the construction of a contract. The case turns upon the question, to what do the words “in such an event” (upon the happening of which the “indemnity clause” in the contract was to become operative) refer?

We agree with the trial court that they refer to what immediately precedes, to wit, the event of the band mill proving unsatisfactory, and the giving of such a notice of the fact by plaintiff as would require the defendant to take it out, and restore plaintiff’s sawmill to its former condition; in other words, that the indemnity of $1.60 per M. was to be paid only in- case, after full trial, the band mill proved unsatisfactory, and the plaintiff, for that reason, finally concluded not to take it, and notified defendant of that fact.

The promise of defendant, when asking for an extension of time, “to continue the $1.60 per M.,” must be construed as meaning merely to continue that same agreement in case the mill finally proved unsatisfactory after the proposed changes. The promise to pay plaintiff the expense caused by its mill being shut down from February 8th to February 25th is not consistent with the idea that defendant was also to pay the indemnity of $1.60 per M. during the same time. If plaintiff has any claim for damages for the loss of the use of the mill during the delay it must he for breach of the contract, and not under this indemnity clause.

There is nothing in the point that the court erred in allowing defendant to dismiss its counterclaim. The matter was within the discretion of the court. Furthermore, we fail to see how the plaintiff is at all prejudiced.

Order affirmed.

Buck, J., absent, sick, took no part.

(Opinion published 59 N. W. 346.)