Schuhknecht v. Robers , 192 Wis. 275 ( 1927 )

Crownhart, J.

On the trial of this action it was contended on the part of the appellants that the contract was plain, unambiguous, and not subject to oral testimony to interpret it. The appellants contended that the contract provided in plain terms that the respondent, Robers, was to be paid twenty-five cents a yard for all dirt excavated from the channel, and, further, was to receive forty-five cents a yard for all dirt moved and spread, from the spoil banks.

On the other hand, it was contended by the respondent, Robers, that it was the intent of the parties that he should be paid seventy cents a yard for all dirt excavated from the channel and leveled over a space of 250 feet on either side of the channel, and that the contract was ambiguous and subject to explanation by oral testimony.

The difference between the parties as to the interpretation of the contract is apparent. The substance excavated from the channel contained much water and other soft, porous matter subject to shrinkage as it was deposited upon the spoil banks; likewise much of the dirt deposited on the spoil banks would not be required to be moved. The single question to be determined by this court is whether or not the contract is plain and unambiguous and to be interpreted as written, or whether it is ambiguous and subject to oral explanation. The trial court found that the contract was ambiguous and took testimony to determine the intent of the parties. The court thereupon determined from such evidence that the respondent, Robers, was entitled to receive seventy cents a yard for all material excavated from the channel and leveled.

The first contract was loosely drawn by the respondent, in typewriting,■ and parts thereof stricken out by pen and ink, and interlineations added before signing. The second contract was drawn by an attorney then in the employ of the respondent, in typewriting, and was complete in every detail and signed without additions or interlineations.

“It must be borne in mind that it is not the business of construction to look outside of the instrument to get at the intention of the parties, and then carry out that intention whether the instrument contains language sufficient to express it or not; but the sole duty of construction is, to find out what was meant by the language of the instrument. And this language must be sufficient, when looked at in the light of such facts as the court is entitled to consider, to sustain whatever effect is given to the instrument.” Farmers’ Loan & Trust Co. v. Commercial Bank, 15 Wis. 424, 438.

This rule has been many times repeated by this court.

We may therefore compare the two contracts in order to ascertain the situation of the parties when the second contract was made. It will be noted by the first contract that it was provided that the channel should be excavated for the sum of $1.75 per lineal foot, and that the dirt should be spread over a space of fifty feet from the edge of the channel for the additional sum of $1,250. In other words, the two items were separate; a certain definite sum being appropriated to the excavation, and an additional sum appropriated to the spreading of the spoil banks.

In the second contract the same thought appears. A certain definite sum, that is, twenty-five cents a yard, was to be paid for excavation, and the additional sum of forty-five cents a yard was to be paid for spreading the dirt. If, as respondent contends, the price was to be seventy cents a yard for all dirt excavated -and spread, it was easy to say so in plain and simple language. The respondent, in drafting the contract, adopted exactly that method when it came to the excavation of the artificial lake. He then provided that he should receive the sum of forty-five cents per yard for every yard of dirt or material excavated or moved in the digging and constructing of said lake. Note the expression, — “forty-five cents per yard for every yard of dirt or material excavated or moved in the digging and constructing of said lake.” But in the digging of the channel the appellants were to pay Robers “twenty-five cents per.yard for every yard of material taken out in the construction of said channel, and will pay the additional sum of forty-five cents per vard for every yard of material leveled.”

“In the absence of fraud or mistake, the words of the contract must govern, and the contract be enforced as written.” Forest Lawn Co. v. Hanley, 94 Wis. 23, 26, 68 N. W. 413.

“A written contract should, in case of doubt, be interpreted against the party who has drawn the contract.” 6 Ruling Case Law, 854.

We are of the opinion that the contract is plain and unambiguous, and that it is not subject to testimony of witnesses to determine its meaning.. We have no difficulty in determining its plain intent from its terms as written.

The respondent contends that the contract received a practical construction by reason of the fact that the appellants overpaid the respondent for doing the work. The same contention was made in Burroughs v. Joint School Dist. 155 Wis. 426, 144 N. W. 977, but the court said:

“No practical construction of the contract binding upon the parties was given it by the fact that defendant overpaid plaintiffs. When such overpayments were discovered further payments were refused. There can be no sound basis for a claim of practical construction in the absence of knowledge of the facts and circumstances to which the construction relates.”

Practical construction may be resorted to only when the contract is ambiguous; but where the contract is unambiguous, practical construction has no application. Fulton v. Stevens, 99 Wis. 307, 74 N. W. 803.

The contract speaks for itself in plain and unequivocal language. It makes no difference under the law what the parties now think it means. The sole question is the fair and reasonable interpretation of the writing as it stands. No one can read the contract here under consideration without being convinced that the contract was intended to de- ■ clare the full intention of the parties. See John O’Brien L. Co. v. Wilkinson, 117 Wis. 468, 94 N. W. 337; Hart v. Hart, 117 Wis. 639, 94 N. W. 890.

The respondent claims that if the contract is interpreted as claimed by appellants there results great difficulty in measuring the material leveled or spread . from the spoil banks. Some such difficulty seems to have been contemplated and cared for in the contract. Each party was to employ an engineer, to act together as umpires in case of dispute. However, the testimony does not disclose any insurmountable obstacles in reaching a fair measurement.

The judgment of the county court must be reversed.

By the Court. — The judgment of the county court is reversed, with'directions to enter judgment in accordance with this opinion.