McCord v. Edward Hines Lumber Co. ( 1911 )

SiebeckeR, J.

It is conceded that the defendant under the original lease and the agreement of November 2, 1903, whereby the plaintiff consented to the subletting of the premises by the defendant, had the right to remove the mill and the dock. The court instructed the jury that “the word 'dock’ or 'docks’ ... as used by the parties to this action in the agreement in question, includes all of the round piling and sheet piling, if any, and all of the caps and cross-ties placed on the tops of such round piling in the construction of the docks and superstructure as described by the evidence in this case.” No exception is taken by the appellant to this interpretation of the terms of the agreement, and we take it that the agreement is to be considered in the light of this meaning of tbe term. Tbe clause of tbe contract upon wbicb tbe plaintiff rests bis right to recover is, “that if tbe docks or any part thereof are removed they shall be so removed as to leave tbe slips intact, and such slips shall be protected from injury.” Tbe plaintiff contends that this stipulation imposes on tbe defendant tbe obligation to protect tbe slips from future injury from whatever cause if tbe docks should be removed by its authority under tbe lease. Applying this idea to tbe subject matter of tbe contract, we have an agreement requiring tbe defendant to erect some structure without specification as to its nature and kind, tbe manner in wbicb it is to be accomplished, or.tbe time during wbicb it will be tbe duty of tbe defendant to maintain it. Under such an interpretation of tbe terms of tbe stipulation it is difficult to ascertain what tbe parties contemplated, for there is nothing in it to suggest that they agreed on any particular protection or whether they 'intended tbe time for maintenance to be limited or perpetual. Nor can we infer from such implications that it was understood in what way this protection was to be accomplished. Tbe cost of tbe maintenance of tbe protection tbe plaintiff now claims should have been erected is so disproportionate to all tbe benefits received by tbe defendant under tbe lease as to negative tbe idea that it was contemplated by tbe parties. We have, then, a situation so full of uncertainties in so many respects, with conditions so burdensome in their weight, as to forbid such a construction if in tbe light of tbe subject matter of tbe transaction tbe language used is susceptible of a more reasonable interpretation. Tbe facts that no such stipulation is contained in tbe original lease and that no additional consideration entered into tbe consent agreement to a subletting of tbe premises tend to show that this stipulation imposes no obligations additional to those contained in tbe original lease, and that it was designed to specify tbe manner of performing tbe obligations already imposed.

Reading tbe language of tbe clause in question in tbe light of these considerations and examining its context and tbe words employed in their natural and ordinary sense, it seems evident that tbe parties did not have in mind tbe implication tbe plaintiff now invokes, but rather that tbe parties contemplated a construction thereof that should include no more than tbe defendant contends that it embraces. An examination of tbe language used in tbe first part of tbe clause definitely indicates that they were treating tbe subject with a view to having tbe slips kept intact while tbe docks were being removed, and that tbe last clause applies to tbe same thing but specifies that tbe docks shall be so removed that tbe slips will be protected from injury. This construes tbe parts of tbe sentence together and as dealing with one subject, leads to a reasonable and natural conclusion, frees it from all uncertainty, including tbe implication of plaintiff’s contention, and harmonizes it with tbe contents of tbe original agreement of tbe parties. We are therefore led to tbe conclusion that under tbe clause in question tbe defendant was obligated, if it removed tbe docks, to do tbe work in a way that would leave tbe slips intact, and in removing them to do all things reasonably necessary to protect tbe slips from injury. In this view tbe plaintiff is not entitled to have tbe slips protected against future injury.

As we understand tbe record there is no basis for claiming damages for injury to tbe slips in not leaving them intact or in not properly protecting them from injury in tbe process of tbe removal of tbe docks, and hence tbe judgment awarded must stand.

By the Court. — Judgment affirmed.

Maeshall, J., took no part.