Brooks v. Bechill

Oregon Supreme Court
Brooks v. Bechill, 63 Or. 200 (Or. 1912)
124 P. 201; 1912 Ore. LEXIS 216
McBride

Brooks v. Bechill

Opinion of the Court

Mr. Justice McBride

delivered the opinion of the court.

This case turns upon the construction of the contract. Plaintiffs contend that they were required to furnish only such a quantity of gravel as the capacity of their plant would permit, while defendants claim that the contract should be so construed as to require plaintiffs to furnish as much as 100 cubic yards per day whenever required by them. The language of the contract is somewhat ambiguous, and in construing it it is necessary to consider the situation of the parties in reference to the subject-matter.

*204Defendants were street contractors bound, no doubt, by the usual conditions of that class of contracts to complete their work at a particular time and in a par-icular manner and, as the contract indicates, were contemplating not only the work then secured but other like contracts in the future. Under these circumstances it is plain that it would have been impracticable and out of the usual course of things for them to have had or kept a supply of screened gravel on hand, but would naturally expect it to be delivered at the place needed. This is indicated by the provision in the contract stipulating that the gravel was to be measured upon the street after being put down; the measurement of the city engineer to be accepted by both parties. Both parties understood therefore that defendants would require large quantities of gravel and that they would require it from time to time as the exigencies of their work demanded. It would have been unreasonable and wholly unbusinesslike for defendants to have bound themselves to buy all their gravel from plaintiffs and at the same time to have left plaintiffs at liberty to construct a screening plant whose capacity might be 2 cubic yards per day or 100 cubic yards, just as they saw fit. The first requirement of the contract is that plaintiffs should sell to defendants “all the screened gravel required by them for the improvement of Vancouver avenue, according to specifications and all the screened gravel required (by them) in the conduct and prosecution of their contracting business in the City of Portland for a period of 12 months.”

We will now consider clauses which it is claimed qualify or modify this otherwise absolute duty imposed upon plaintiffs. The principal qualification is in the following words:

“And the said Brooks and Downing further undertake and agree to construct bunkers and screening machinery upon their property heretofore described on or before the first day of July, 1907, and to supply the *205said Bechill Brothers with the gravel as needed and required for their business in such quantities as the capacity of their plant will provide, but agree to establish a plant and to furnish to said Bechill Brothers not more than one hundred (100) cubic yards of screen gravel per day.”

Another provision is:

“The said Brooks and Downing shall not be required under this contract to furnish an excess of 100 cubic yards per day.”

Taking all these provisions together, we interpret this contract to mean that plaintiffs were bound to construct a plant with a capacity of not to exceed 100 cubic yards per day, and that they were required to so operate it as to supply all of defendants’ demands upon it up to 100 cubic yards daily. This is the only construction that renders the contract effectual for the purpose intended, and it is a familiar rule “that, if by a particular construction an agreement would be rendered frivolous or ineffectual, and the apparent object of the contract would be frustrated, but a contrary exposition, though per se less appropriate, looking to the words only, would produce a different effect, the latter interpretation shall be applied if it can possibly be supported by anything in the contract or in the nature thereof.” Chitty, Contracts (11 ed.) 112; Cobbs v. Fountaine, 24 Va. 487.

The construction above indicated makes the contract certain and effectual to accomplish the purpose contemplated. The opposite construction renders it uncertain and leaves with the plaintiff the option as to the quantity of gravel they shall furnish; an option which might be so exercised as to frustrate and render abortive the purpose of defendants in entering into the agreement.

We are of the opinion that the construction of the agreement given by the learned judge who passed upon it on demurrer and at the trial was correct, and the judgment is therefore affirmed. Affirmed.

Reference

Full Case Name
BROOKS v. BECHILL
Status
Published