Hale Bros. v. Milliken

The plaintiff corporation brought this action to recover from the defendants the sum of $13,973 for damages alleged to have been sustained by it on account of the failure of defendants to deliver within the time agreed upon certain steel to be used in the erection of plaintiff’s building in the city of San Francisco. The alleged damages consist of the following items: 1. The sum expended by plaintiff in the preparation of the steel for use after its delivery, $577.65, the pleaded agreement being that it should be delivered in condition so that it could be placed as received in the building; 2. Ground rent at the rate of $1400 per month for a period of three months; 3. Interest on the money expended by plaintiff in the building independent of the steel work during the time of the delay, aggregating the sum of $396.32; 4. The loss to plaintiff of the use of the building for three months, alleged to -be of the value of $3,000 per month, or a total of $9,000.

The answer specifically denies the averments of the complaint, and pleads a counterclaim, and prays, among other things, for judgment against the plaintiff for the sum of $6,884.50, alleged to be the balance due defendants from plain

The cause was tried by jury, and a verdict returned in favor of plaintiff in the sum of $186.41, “after deducting the amount of defendants’ counterclaim.” Thereupon, and in accordance with said verdict, the court entered its judgment in favor of plaintiff in the sum of $186.41. Defendants appeal from said judgment and from an order refusing them a new trial.

Much space in the briefs of counsel is devoted to a discussion of the evidence, appellants attempting by a minute examination and analysis thereof to demonstrate that the jury awarded damages in favor of plaintiff far in excess of what the facts adduced justified. The contract for the purchase and sale of the steel for the building was made and entered into between Reid Bros., architects and agents of plaintiff, and N. L. Bell, the Pacific Coast agent of defendants. The place of business of defendants was at the time of the transaction in the city of New York, and the headquarters and office of their agent, Bell, were, at the time of the making of the contract, in the city of San Francisco.

The record consists of a transcript of four hundred and ninety pages, of which the evidence takes up approximately four hundred pages. It would be useless, we think, to undertake to discuss in detail the entire mass of evidence] or to attempt to present a satisfactory synopsis thereof, for the purpose of showing reasons why the verdict should or should not be disturbed. The record discloses the fact that most of the evidence is from witnesses produced by plaintiff, and that it points almost all one way. There is no dispute that a contract for the sale and purchase of the structural steel required for the erection of the building of plaintiff was made by the parties. The only questions in the case are, so far as the facts are concerned, whether there was on the part of the defendants a breach of the terms of the contract, and, if so, whether or not the damages awarded are excessive.

The evidence shows that the building was not completed so that it could be occupied until about the 1st of October, 1900—approximately, if not actually, three months after the payment of ground rent, under the lease, had commenced. Witnesses for plaintiff—real estate dealers in San Francisco—■ testified as to the rental value of the premises from July 1, 1900, to October 1,1900, and such value was by them variously estimated at from $2,500 to $3,200 per month. Witnesses for the defendants placed the rental value at a considerably lower figure.

The delay in the erection and completion of the building was occasioned, according to the testimony of Reid, the architect, Lang, the brick and wood contractor, and Arthur, the steel-setter, to so-called “shop errors”—that is, errors made at the manufactory in the numbering of the columns and the adjustment of the connections of the steel—and to misshipments—that is to say, shipments out of order and in a haphazard manner. For illustration, it was stated by Mr. Reid that the first tier or floor was, as shipped, incomplete, and that tiers were shipped for floors not prepared or ready for steel erection in advance of those floors ready for the steel material. The delay thereby occasioned had, it is shown, and, as would necessarily follow, a reactionary effect upon the work of masonry and carpentry. In other words, the brick and wood contractors were necessarily delayed by reason of the delay due to the misshipments. The building is not what is known strictly as a steel structure. Mr. Reid testified that the delay, caused by the manner in which the steel was

There is no evidence in the record offered by the defendants directly contradictory of that of which we have presented a recapitulation. Counsel for defendants, however, undertake to show by an extensive argument based upon certain apparent discrepancies developed through the cross-examination of some of the principal witnesses for the plaintiff, that the amount of damages assessed by the jury is unwarranted by the evidence. But, under the well-understood rule, where there appears a substantial conflict in the evidence (and we think, as we have before suggested, that the testimony was pretty much all one way upon the important points), we are precluded from going into the question thus presented. The evidence must be so plainly and palpably insufficient to support the verdict that it can be said that such is the case as a matter of law before this court is justified in setting aside a verdict upon the evidence or disturbing the findings of the trial court. The record here does not authorize us to make any such ruling. The discrepancies or inconsistencies which may have been brought out by an examination or by cross-examination of the witnesses are also matters for the jury to pass upon and settle to their own satisfaction. Their verdict, finding the facts in a particular way, forecloses us from any inquiry into the question as to whether certain witnesses declared the truth or otherwise, or whether inconsistent statements which may have been shown by their cross-examination were sufficient to have discredited their testimony or not. The statement thus made of this proposition is only a trite declaration of the rule by which appellate courts are uniformly governed in this country with respect to their power of reviewing questions of fact. It is enough to Say, however, that we have given the "record careful and painstaking examination, and our conclusion is, upon this point, that the verdict and judgment are abundantly supported by the evidence.

There were numerous objections interposed against the admission of certain evidence, some of which are not discussed in the briefs, and, therefore, not urged here. As to some

But the most important point presented is raised by the contention that the court below erred in refusing to permit defendants to show that there prevailed, and for many years had existed, in the city of San Francisco, “a general well-known usage among manufacturers of and dealers in structural iron and steel, similar to that furnished by defendants, as to the manner and way by which the weight of the material was determined and arrived at.” The contract is silent, so far as express language is concerned, as to how the weight of the steel was to be determined—whether by what is known as “figured” or estimated weight, or by “scale” weight. The former, as we understand it, is the means of ascertaining the weight by a standard, fixed and adopted by dealers, in structural steel. For example, steel columns, girders and other connections necessary for the steel part of the structure, according to their dimensions, are given a standard weight by manufacturers and dealers in such materials. “Scale weight” is the determination of the weight by what the material actually weighs in pounds. It is contended by appellants that if there existed in San Francisco, at the time of the making of the contract, among dealers in such material, a custom, according to which the manner or method of ascertaining the weight of structural steel was determinable, then the contract is to be presumed to have been made with reference to such custom and that it, therefore, became a part of said contract. Several California cases are cited in support of this view, but we do not think that they are exactly in point, or, at least, ought not to be held applicable to the case here. The contract is evidenced by conversations, telegrams, letters, and the plans, specifications and drawings. There is no controversy between the parties that the prices offered by defendants and accepted by plaintiff were for “so much per pound”; but it is claimed by appellants that the word “pound” “is of technical significance when used in connection with the sale of structural steel.” But appellants first make the claim that their contention for figured weight is sustained by a certain clause in the specifications. The clause referred to reads: “Figured dimensions in all cases to be taken in preference to scale measurements, and no important dimensions shall at any time or under any

The legislature of this state has established a standard of • weights and measures, according to which, by the provisions of section 3222 of the Political Code, “all contracts made in this state for work to be done or for anything to be sold or delivered by weight or measure,” must be construed. The standard of weights and measures is thus fixed by section 3209, supra: “The standard of weights .... now in charge of the Secretary of State, being the same that were furnished to this state by the government of the United States, and consisting of ... . nine avoirdupois weights of one, two, three, four, five, ten, twenty, twenty-five and fifty pounds, respectively, . . . are the standards of weights . . . throughout this state.”

The case of Higgins v. Cal. Petroleum Co., 120 Cal. 629 , [ 52 Pac. 1080 ], so much relied on by defendants, was where the plaintiff brought an action to recover “certain royalties on certain bituminous rock and liquid asphaltum mined by defendants,” for which the latter agreed to pay “the sum of fifty cents per ton for each and every gross ton.” The question there was, What did the parties mean by the word “gross”? Evidence was admitted at the trial for the purpose of showing that by usage at the place where the contract was made the word “gross” as used in the contract means a “long ton,” or a ton consisting of “two thousand two hundred and forty pounds,” and the court made a finding accordingly. The supreme court sustained the ruling, saying: “The contention of appellant is, that the statute defines the meaning and use of the word ‘ton’ (Pol. Code, sec. 3222), and that the lease is unambiguous and cannot be explained or contradicted by parol evidence; therefore, there could have been no evidence at the trial justifying the finding of the court that the phrase ‘gross ton’ used in the lease meant a long ton of ‘two thousand two hundred and forty pounds. ’ Some decisions are cited apparently holding that a contract of this nature must be conclusively presumed to refer to the statutory weights and measures-—at least, in the absence of a direct and express reference in the contract to a different standard—and in this connection it is argued that the adjective ‘gross’ does not refer to the measure—that is, to the number of pounds in the ton—but to the condition of the commodity when weighed, to wit, that the crude and unrefined asphalt is to be weighed, and not the refined product. I think the question is entirely settled by section 1861 of the Code of Civil Procedure, which reads as follows: ‘The terms of a writing are presumed to have been used in their primary and general acceptation, but evidence is nevertheless

The very purpose, obviously, of laws establishing standards of weights and measures, is to render certain and unequivocal the meaning of the language of contracts involving matters to which such laws relate, by a comparison of the language of the contracts with that of the law, and thus relieve the courts, in some measure at least, of the perplexing difficulties which must often confront them in seeking the actual intention of the parties to such contracts. The legislature has wisely declared that it is .the better policy that there should be a general law, effective and operative throughout the whole state, regulating such matters, and of which all persons are conclusively presumed to have knowledge, and through the assistance of which all contracts pertaining to the subject matter of the statute may be satisfactorily construed. Viewed- thus by the light of the written law, it is manifest that the opportunity for mistakes in an effort to ascertain what parties mean by the language of such contracts is at least minimized, if not altogether obviated. “If,” as is well said in Evans v. Myers, 25 Pa. St. 114 , “every section of the country may have its own weights and measures, to be established by its own customs, strangers would be entrapped into liabilities which they never intended to incur, and no one could know with precision the extent of his obligations.” (See, also, Green v. Moffett, 22 Mo. 529 ; Harris v. Rutledge, 19 Iowa, 388 , [ 87 Am. Dec. 441 ].) The legislature certainly meant something by the enactment of the

Section 3222 of the Political Code is garbed in language as clear as a cloudless day, and, as observed, provides that “contracts made within this state for work to be done or for anything to be sold or delivered by weight or measure, must be construed according to the foregoing standards,” referring to the preceding section establishing the standards of weights and measures. Is it to be held that that section means nothing? Is there to be found any enacted proviso qualifying the provisions of the law as to weights and measures in any particular so that they may. be disregarded with impunity?

In Rogers v. Mechanics’ Ins. Co., 1 Story, 603 , 608, [Fed. Cas. No. 12,016], Judge Story uses the following language:

At page 656 of the second volume of his work on Contracts, 'Judge Parsons says: “Where certain things are to be done by the contract which the law has regulated in whole or in part, the contract will be held to mean that they should be so done as would be either required or indicated by the law.”

“The true office of usages of trade,” says Greenleaf, section 251, volume 2, of his work on Evidence, “is to interpret the otherwise indeterminate intentions of parties, and to ascertain the nature and extent of their contracts, arising not from express stipulation, but from mere implications, and acts of a doubtful and equivalent character; and to fix and explain the meaning of words and expressions of doubtful or various senses.”

“ . . . But, although evidence of custom and usage may be introduced in a case to show what the meaning of the parties was in regard to the subject matter of the contract, or to explain the meaning given in particular trades or occupations to certain words, yet evidence cannot be introduced of the custom when the same contradicts the plain and unambiguous words of the contract or violates a settled legal rule of construction.” (Bigelow v. Legg, 102 N. T. 652, [ 6 N. E. 107 ].)

The “settled legal rule of construction” in this state as to such contracts is to be found in the provisions of the law fixing the standard of weights and measures. The legislature has said so in section 3222 of the Political Code. The word “pound,” whose meaning is sought to be modified or changed, does not and cannot render the contract ambiguous, because it is a statutory word. “Evidence cannot be introduced of the custom when the same contradicts the plain and unambiguous words of the contract,” says the court in Bigelow v.

We are not to be understood as questioning the ruling in the Higgins case, 120 Cal. 629 , [ 52 Pac. 1080 ], in so far as it concerns the application of section 1861, Code of Civil Procedure, to the peculiar circumstances of that case. But we do think that the decision unnecessarily lays down the rule too broadly, and we have no hesitation in declaring that if the language of the opinion is to be interpreted as holding the rule to be of such, indiscriminate and universal application in the matter of the interpretation of express contracts as to embrace all manner of such instruments, regardless of the language in which they are expressed, and including those which, in certain respects, the legislature has provided must be construed according to other rules adopted by it for that purpose, then we feel constrained to say that we cannot subscribe to it.

There is, however, no attempt made in the opinion in the Higgins case, 120 Cal. 629 , [ 52 Pac. 1080 ], to combat the authorities which it is therein stated were “cited apparently holding that a contract of this nature must be conclusively presumed to refer to the statutory weights and measures— at least in the absence of a direct and express reference in the contract to a different standard. ’ ’ Nor is there anything suggested in that case as to what disposition is to be made of section 3222 and the other sections of the Political Code fixing the standard of weights and measures. The conclusion we have reached, after a careful examination of the question unde;r discussion, is that all contracts involving “work to be done, or anything to be sold or delivered by weight or measure,” must be, as required by section 3222, supra, construed by the light of the statute establishing in this state a standard of weights and measures, unless the parties have

During the direct examination of James M. Reid, the plaintiff offered, and the same was received in evidence by the court, a letter, under date of March 17, 1900, addressed to Bell, and written and signed by Reid Bros. This letter called to the attention of Bell the fact that the steel-setters had experienced some difficulty in placing the steel columns, “the trouble resulting either from the improper placing of the brackets on the side columns, or the incorrect numbering of them.” The inference from the letter was that the trouble and consequent delay was due to “shop errors” in adjusting the steel connections or mistakes made in marking the plan numb era by which the steel-setter should be governed in setting the steel, and for which errors and mistakes defendants were responsible. Testimony had been given on behalf of plaintiff that the steel materials had been marked with a shipping number which was plainly visible, and it also appeared that the plan numbers had been marked on the steel, but had been painted over so that they were somewhat obscure. The setter had undertaken to set the columns, etc., by the shipping

The witness Bell, in detailing a conversation he had with one of the Reid brothers, said, among other things, “that they would not hold us down strictly to February shipments.” Upon motion of plaintiff the quoted portion was stricken out by the court, on the ground that it was “incompetent, irrelevant and immaterial testimony.” The claim of plaintiff is that the statement is only a conclusion of the witness. The part stricken out appears with an extended statement made by the witness of a conversation with Reid and is presented in narrative form in the transcript, and it is somewhat difficult from the manner in which it thus appears to definitely say whether the language used by the witness was intended to represent what Reid actually said, or was only the witness’ conclusion from what he said. The trial court was, of course, in a position to determine whether the part stricken out was a conclusion or not. But the ruling was harmless in any view, because, whether or not the shipments were to be made under the contract in the month of February was immaterial, if, as we think the evidence conclusively shows, the understanding of the parties was that shipments were in any event to be so made that the building could be completed and occupied by the 1st of July, 1900.

Nor do we think the court committed error in sustaining the objection to the question propounded to the witness- Arthur: “The amount of the bill which you rendered for all of this riveting and reframing amounted to $189, did it not?” The witness had already testified that the amount of the bill for the work referred to was the sum of $189, and, therefore, no injury could have resulted to defendants by the refusal of the court to allow a repetition of the statement. The fact was before the jury for all the purposes for which it might be pertinently used in the case.

While Mr. Reid was testifying, a letter, written by his firm to the defendants, under date of June 8, 1900, was called to his attention on cross-examination by appellants, and on their motion admitted in evidence. The letter related to the differences arising between plaintiff and defendants by reason

The following instruction was given by the court at the request of plaintiff: “The contract of sale is admitted in the pleadings. It is admitted that on or about the 10th of January, 1900, the plaintiff, Hale Brothers, purchased from the defendants, Milliken Brothers, and Milliken Brothers sold to Hale Brothers certain steel for their building to be erected in San Francisco, at certain prices per pound. That said steel was to be delivered f. o. b. New York City, during the

At the request of defendant the following instruction was given by the court: “Defendants, in their answer, do not deny the making of the contract, as alleged in the complaint [the italics are ours] other than they deny that they agreed to deliver the steel at any other place than the City of New York, in the State of New York.”

The contract, as alleged in the complaint, is as follows: " Plaintiff agreed to purchase and defendants agreed to furnish and deliver all the steel required by the plans, specifications and drawings made by the architects employed by plaintiff, to be used in the construction of a building to be erected by plaintiff on the lot of land leased, as aforesaid, by plaintiff from David R. Jones, at the following prices: ... all of said steel work to be delivered f. o. b. to plaintiff during the month of February, 1900, to enable plaintiff to complete and occupy said building on or before the 1st day of July, 1900, and all of said steel work to be made and completed in conformity with the plans, specifications and drawings prepared by the aforesaid architects and delivered in such condition as to be immediately set up in said building.”

The court submitted for determination by the jury the question as to the place at which the steel was to be delivered. The complaint nowhere by direct averment declares that the steel was to be delivered at any other place than New York city. We are of the opinion that the instruction complained of contained a fair statement of the contract admitted by the answer, and concerning the existence of which there was no controversy at the trial. The question at issue was not, whether a contract had, in fact, been made by the parties, but whether or not there had been a breach of the terms thereof by one of the parties. The criticised instruction contains practically nothing more than was embraced in the

There are many other errors assigned, some of which are referred to in the briefs of counsel as worthy of notice, but we deem it unnecessary to give them special attention. We have examined them all with care, and can see nothing in them impinging upon the substantial rights of defendants.

The judgment and order are affirmed.

Burnett, J., and Chipman, P. J.. concurred.

A petition for a rehearing of this cause was denied by the district court of appeal on May 3, 1907, and the following opinion was then rendered:

We have given the petition for a rehearing of this cause careful consideration, and are unable to discover any reason for changing our views, as expressed in the main

We feel satisfied with the conclusion reached upon all the points made by counsel, and the petition for a rehearing will, therefore, be denied.

Chipman, P. J., and Burnett, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on May 31, 1907.