Ramsdell v. Ramsdell ( 1913 )

Mr. Justice Burnett

delivered the opinion of the court.

1. The question made and decided by the Circuit Court was whether or not there was an agreement to furnish any plans or specifications. To determine this question it is only necessary to construe the admitted contract. It is said in Section 713, L. O. L., that: “"When the terms of an agreement have been reduced to writing by the parties, it is to be considered as containing all those terms, and therefore there can be, between the parties and their representatives or successors in interest, no evidence of the terms of the agreement, other than the contents of the writing, except in the following cases: 1. "Where a mistake or imperfection of the writing is put in issue by the pleadings; 2. Where the validity of the agreement is the fact in dispute. But this section does not exclude other evidence of the circumstances under which the agreement was made, or to which it relates, as defined in Section 717, or to explain an ambiguity, intrinsic or extrinsic, or to establish illegality or fraud. * *”

2. The language of the contract was that “the second parties will build and complete said residence according to plans and specifications furnished by the second parties for that purpose.” As plainly as can be stated, these words mean, not only that plans and specifications were to be furnished, but also that the defendants were to furnish them. The defendants count upon the concluding clause of the contract as excusing them from furnishing plans. That paragraph reads thus: “Said house is to be a duplicate of a house built by S. W. Anderson near East 26th and Belmont, No. 815 Belmont, except as otherwise specified.” This language fairly construed does not obviate, but rather accentuates, the duty of the defendants to furnish plans and specifications, because it uses this language, “except as otherwise specified.” In other words, it amounts to saying that, wherever the Anderson house should differ from the plans and specifications to be furnished by the second parties for that purpose, the specifications should control. The language being plain and unambiguous, the court was in error in receiving and considering testimony which virtually contradicted the plain terms of the contract binding the defendants to furnish plans and specifications. The issue made by the pleadings was not whether the defendants were to furnish plans and specifications, but whether or not the plans and specifications pleaded by the plaintiff were those by which the house was to be built. The question involved in the erroneous ruling of the court was foreign to the pleadings. The court further erred in refusing to allow the plaintiff to make proof of the allegations of his complaint respecting the identity of the plans and specifications pleaded and the damage resulting from a violation thereof.

The judgment is reversed and the cause remanded for further proceedings. Reversed.

Mr. Chief Justice McBride, Mr. Justice Moore and Mr. Justice Ramsey concur.