Adamant Plaster Manufacturing Co. v. National Bank of Commerce
Adamant Plaster Manufacturing Co. v. National Bank of Commerce
Opinion of the Court
Plaintiff and defendant entered into a contract in writing, which was substantially as follows:
“This memorandum of agreement, made this thirteenth day of August, 1890, witnesseth: That we, the undersigned, agree to and with the National Bank of Commerce, a corporation of the city of Tacoma, Washington, to plaster with adamant plaster their new building situated on the northeast corner of Pacific avenue and Thirteenth street, in the city of Tacoma, Wash., for the sum of thirty-five cents per yard of actual wall plaster, leaving out all openings, such as doors, windows, wainscoting, etc. The brick walls will receive two coats of adamant plaster and will be made straight and plumb. All the inside partitions will receive one coat of adamant plaster. All the plastering must be plumb, straight and all angles must be cut. All the plastering must be brushed and floated to the entire satisfaction of the architect. The ceiling of the banking room must be run at one time so as to avoid joints and be of a uniform color. All the banking room will be furred and lathed, and all of the plastering must be of extra fine finish so as to receive the decoration which is to be painted on said walls.
“We are to furnish all labor and materials and scaffolding for the above mentioned work, and we bind ourselves to have all the plastering completed in thirty days’ labor or thirty working days. We are to be responsible for all losses and accidents until the plastering is all completed and received by the architect. All the payments during the progress of the work will be made on certificate of the architect, which will not exceed 66 per cent, of the amount of the work done at the time said certificate is given; the remainder of the amount will be paid when the work is completed and accepted by the architect. All the adamant plaster must be composed of the best and pure materials, the sand must be clean, sharp sand, and must be free from sodium and nitrate of soda; such sand as obtained from the bay or sand that has been washed by salt water will not be used. All the work must be first class and to the entire*234 satisfaction of the bank directors and the architect. We agree to commence plastering as soon as the building will be ready for us, and we bind ourselves to complete the building in thirty working days. ’ ’
The plaintiff alleges that during the progress of the work under said contract, the defendant refused to allow it to proceed as it claimed the right to do, and that thereupon a supplemental contract was entered into between them in which it was agreed that the defendant should compensate the plaintiff for the increased cost of the work as required to be performed by the defendant over the cost of the work as contemplated by the contract as understood by the plaintiff. Upon the trial of the issues framed in regard to such extra compensation, plaintiff introduced proof tending to establish the making of such supplemental contract, while the defendant introduced proof which substantially contradicted that of the plaintiff. The direct proof upon this question on the part of the plaintiff was almost entirely made up of the testimony of one Holbrooke, its manager, and on the part of the defendant by the testimony of one Weatheri’ed, its vice px’esident. Upon this conflicting testimony the lower court fouxxd the issue in favor of the defendant. If this finding of the coxxrt was correct, its judgment must be affirmed.
It, thei’efore, becomes necessary for us to examine all of the proof offered by the respective parties, and by the aid thereof interpret the direct testimoxxy as to this issue. As a genei'al rule this court, even in an equity case, will not disturb a finding of fact made by the lower court unless it seems clear that it has made a mistake in regard thereto. If, however, oxx an investigation of the case hex’e it appears that the court below made a mistake in the law of the case as bearing upon the introduction of proofs, and that such mistake of law has in any manner contributed to its finding of the facts, such general rule will no longer have force,
The whole question, then, must, in our opinion, turn upon the construction of the written contract above set
To properly determine this question the court must, so far as possible, put itself in the situation of the parties and come to as full an understanding of the subject matter of the contract as the parties must be supposed to have had at the time they entered into said contract. The undisputed px-oofs introduced on the trial established the fact that the extreme thickness of two coats of adamant plaster was five-eighths of an inch, and that the irregularities ixx the average brick wall in buildixxgs of the kind for which this plaster was coxxtracted would be much greater than that, and that in this particular building such irregularities required plastering of the thickness, in some places, of two or three inches in order to make the same stx’aight and plumb. These facts must be supposed to have been known to the parties at the time they exxtered into the contract. And we must interpret the language of the clause under
It follows that the proof offered by plaintiff to explain said clause was competent, and enough found its way into the record to satisfy us that at the time said contract was entered into there was an understanding between the parties that the filling required before the two coats of adamant plaster should be applied was to be of common lime mortar. But if we were not satisfied upon that subject we should still be of the opinion that the decree could not stand, as we think the court erred in excluding testimony
For the error of the lower court in finding otherwise the judgment must be reversed. Under our view of the contract, however, we are unable to determine from the proofs the amount of additional compensation to which the plaintiff is entitled. As we interpret the contract, as explained by proof of the understanding of the parties, it was the plaintiff’s duty thereunder to fill the irregularities in the brick wall ready for the adamant plaster with common lime mortar. It follows that it would not be entitled to the entire cost of filling such irregularities Avith adamant, but only to the additional cost of such material and labor over the cost of material and labor which would have been necessary if such irregularities had been filled with lime mortar. The proof seems to be reasonably satisfactory as to the total cost of filling such irregularities with adamant, but there is absolutely no proof as to what
Reference
- Full Case Name
- Adamant Plaster Manufacturing Company v. National Bank of Commerce
- Cited By
- 3 cases
- Status
- Published
- Syllabus
- CONTRACTS —AMBIGUITY —PAROL PROOF — EVIDENCE OF CUSTOM — COMPENSATION FOR EXTRAS. In an action to foreclose a mechanic’s lien for plastering a certain building with adamant under a contract providing that “the brick walls will receive two coats of adamant plaster and will be made straight and plumb,” it was shown that the walls were very irregular and considerably out of plumb, more so than usual in such buildings, and that they would require in places plastering of the thickness of two and three inches to make them straight and plumb, while the extreme thickness of two coats of adamant plaster was but five-eighths of an inch; that the parties knew at the time of drafting the contract that two coats of adamant plaster could not be so applied as to make the walls straight and plumb. Held, That the parties intended that the excessive irregularities in the brick wall should be filled up before the application of the two coats of adamant, and the contract not specifying the material to be used for such filling, is to that extent ambiguous and uncertain, and parol proof is admissible to show that it was the understanding and agreement between the parties that the filling required before the application of the two coats of adamant plaster was to be of common lime mortar. Such contract being ambiguous, proof of a custom to fill in irregularities in brick walls with lime mortar before applying adamant plaster is admissible to explain the ambiguity. Where a contract contemplates that irregularities in a brick wall shall be filled with common lime mortar before applying coats of adamant plaster, and under a supplemental contract such irregularities are filled with adamant, extra compensation can be recovered only for the difference between the cost of the two.