Marx v. Kilby Locomotive & Machine Works

50 So. 136, 162 Ala. 295, 1909 Ala. LEXIS 338

• Court: Supreme Court of Alabama
• Decided: May 24, 1909
• Status: Published

Opinion

SAYRE, J.

The contestation between the parties to this record arises out of variant interpretations given by them to the contract between them. Unquestionably the object of all exposition of Avritten instruments is to determine the expressed intention of the parties. Appellant owning a locomotive which had been injured in a wreck, and appellee having facilities and being engaged in the business of repairing machines of the kind, entered into an undertaking for the repair and sale of the locomotive on joint account. Appellee’s theory of the contract, advanced in pleas 3 and 4, is that the stipulation for the repair of the engine at a cost of $1,250 intends that said sum- is the maximum expenditure required to be made for that purpose. In this we think the appellee misconceives the meaning of the contract. The unconditional requirement of the contract is that the appellee should put the engine in first-class running order, furnishing all the necessary material, labor, and whatever other incidental items may be necessary to make it a complete and salable machine, for the sum of $1,250, which amount shall be borne share and share alike by the parties to the joint adventure. Appellee’s contention that the subsequently developed fact that the machine, by reason of hidden defects, could not be made a complete and salable machine for the stipulated cost, will excuse it from further performance of its engagement, seeks to interpolate a condition which has nothing to justify it in the immediate clause or in the context. “One’s undertaking, therefore, will bind him to whatever it is within the scope of private exertion to accomplish without violating the law, however inconvenient, however many obstacles he may encounter, and however impossible its doing may be to him.” — Bishop on Contracts, § 591. Dermott v. Jones, 2 Wall. 2, 17 L. Ed. 762; Brumby v. Smith, 3 Ala. 123; Reid v. Edwards, 7 Port. 508, 31 Am. Dec. 720. The contract in question bound the appellee to make a complete and salable machine of the locomotive at a cost to the joint account of $1,250, and it cannot be relieved of its duty to the appellant by reason of the fact that its engagement proved to be unprofitable to itself. It was within the possibilities of the undertaking, as expressed, that it might result in profit to appellant while involving loss to the appellee, and this the parties must be held to have had in contemplation when they entered into the contract. There was error in overruling the appellant’s demurrers to special pleas 3 and 4.

On the interpretation of the contract which we have adopted, all those questions propounded by the appellee to the witness Clark, with the purpose and effect of showing that the locomotive had defects not discoverable by an ordinarily careful inspection, the cost of making it a complete and salable machine, and appellee’s reason for not completing the repairs as provided in the contract, were, in the presence of the conceded fact that the machine had not been made complete and salable, and in the absence of any charge of fraud on the part of appellant, improperly allowed. They will probably not recur upon a second trial, and we need not consider them in detail.

Reversed and remanded.

Dowdell, O. J., and Anderson and McClellan, JJ., concur.