CITY 011' GOtDSBORO 11. MOFll'ETT.
213
regard as a secondary or remote cause of the collision. The use of the words "or indirectly," in the connection above stated,waa not a materiltl error. Upon the whole, the case appears to have been tried by the circuit court with commendable accuracy and fairness, and its judgment is Lerefore, affirmed.
CITY L
OF GOLDSBORO V... MOFFETT
et aL
(CitI'cuit Court, E, n'Korth CarpUna.
January 13, 1892.)
s;
" A city passed an ordinance Iluthorizing a certain firm to constructwater-w'orks .,. for it upon terms fully, set QUt. "This waa by thEl firm, of the acceptance was to a copy of the ordinance. and SIgI!ed 1D of '.' the city by the mayor and' tbereof, under its corporate seal, and by tile firm and each member thereof under their individual sea1&. IIeld. that thi,s:const1tuted, a binding contract. ' .. . ' , "· BOims-CONsTRUCTION-BREAiJIf·
MUNICIPAL ORPOBATIONS-CONTRACT-ORDINANCES.
.Thell.rm gave a bond whiCh, after recitlngthat the same was required df,them "f,orthe fai.thfuI,P.erforma.nce oftheir contract;". express.ed. the condition to be that they should faithfully perform their contract "during the construction of said works." Held,that'tlie latter words did not restrict the scope onhe Dond to the period ?f actual CODStntCtlOD; but, on the contrary, a failure to begin the work' at l\ll,eonstltuted, a breach.' ./ ' ,,' The amount of damages wlls at least equal to the dilference between.the contract price and the compensation provided for in a new Contract made in pursuance of a bid, secured' bv a subsequent advertisement of the same work. '' , ' , ' , . , ,
8, SA.KE-MEASURE OF D4HAGBII. .
At Law. Action by the city of Goldsboro against John F.Moffett, Henry C. Hodgkins, and John V. Clarke as principals, and DanielG. Griffin as, surety, upon a bond to secure the performance of a contract to buiidwater-works., Jury waived and trial to the court. Judgm('nt for plaintiff. Reade, Bu8bee& Bmbee, for,plaintiff. ' , Thea. F.Klutz, for defendants. " , , SEYMOUR, District Judge. The city ofGoldsboro, by its boardofaldermen, in the spring of 1887,enacted a city ordinance authorizing the firm -of Moffett, Hodgkins & Clarke to construct, maintain, and operate waterThe works in Goldeboro, upon terms fully set forth in the -ordinance was accepted by the firm of Moffett, Hodgkins &, Clarke, which consists. of the defendants John F. Moffett, Henry and John V. Clarke, and, :an instrument embodyi.ng a memorandUm of its acceptance was on the 5th of April, 1887, annexed to a copy of the ordinance, and signed in behalf of the city by its mayor and'derk j under itscQrporate Real,and; by the firm and each member thereof under their individual seals. Under these CirCUt11stances the CO\l.rt is Itt a.loss to conceive upon, what ground the position of .1, that: the. city ordinance did not constitute acontract','irests; , I f
,J'ED-ERAL
vol.
.t
either tbe (lity (of Goldsboro or defendants' firm are capable of entering into a couiract, they have done so by the ordinance and its formal acceptance. Bytheit contract the firm of Moffett, Hodgkins & Clarke undertook to complete the said works to successful operation on or before October 1, 1887. This they have failed to do. On the contrary, they have entirely neglected and abandoned their contract, and the city, after waiting a reasonable time, has made a contract for the same works with another firm. That contract, as well as the one with defendants' firm, has been admitted and made a part of this case. The building of water-works being within the authority vestedin the city government by its charter, and the contract having been duly executed, and having been violated by detendllntsPfirm, the city is entitled to recover from said firm whatever damages it has sustained by . To secure performance ofthe contrnct, the Hodgkins & Clarke entered into a bond in the sum of $0,000, which was qn the 7th of June,1887, duly executed by'themselves as principals, and· by the defendant Daniel G. Griffin as .surety. The condition of the bond is in these words: "Whereas, the city of Goldsbol'o did on the 29th day of Mareh. 1887. adopt an ordinance anthorizingand empowprlngMoffett, Hodgkins & Clarke to construct. maintain. and operate water· works to supply ,the city of Goldsboro. N. C., wlthwl\terjllfi!Jwhereas; the Said ordlnanCi! was duly accepted by said Mofflltt, )IodgkiQs4;;CI"rke; anll whel'l'as. it was further required by the said city that the said Moffett. Hodllkins & Clal'ke give a bond in the sum of five thousand dollars for the faithful contract: Now, if the BllldMoffett, Hodgkins & C1a17kp,.or t1wir assigns. do faithfully perform the terms ,of theircontrllct during the construction of said works, then this obligation to be void; otherwise," etc. A jury having JJecn waived, and hearing had,and the court having found the fa:cts, to be as heteinabove stated, the only question remaining, besides the amount of. pla,intiff's damages, is whether there has been a breach of the condition of the bond. That is purely a question of construction. Defendants' contention is that the bond is conditioned only for faithful performance of the terms of the contract during the construction of the water-works. and that, their construction never having been begun by Moffett, Hodgkins & Clarke, there can have been no breach. Plaintiff's coritention'isthat the failure to construct is itself within the intent and, terms of the .boud. Whatever may. be the technical rules that sometimes endea"ors to interpret wills, or even statutes, there i,s no difficultyin regard to the principle by which every contract should be construed, which is intention. and.but one limitation, which is the words llsedby, the partiel!!. Unlike cases in which the meaning of wills is involved, the words of contracts admit of technical construction only when technical significations are intended by the parties. It is said in thisC8se as a bond, and, as lin as:OIle defendantisconcerned, as the cODtra,et.:ofasurety, the paper in suit shoulll be strictly conate certain minor propositions laid down in the books., strued. tbeD;llaOne that guaranties and, other such is th&
CITY oj GOLDSBORO tI.MOFRTT.
215
one by the defendant in'· this action who is a surety·. to answer for -other's obligation, should beatrictly construed. On the other hand, is the rule that the words of instruments should betaken most strongly against their makers. Propositions of this description are more properly· guides in reaching intent than rules' of construction. They are ne\"erresortedto excepting by way of illustrations, or, as Justice REDFIEJ,D styles them, "makeweights," uthe intention of the parties can be ascertained from the words adopted by them, viewed in the light of the whole agreement and its known circumstances. . . In the present case the intent is evident, and is to be found in, the recitals in the condition of the bond, one of which is that the defendants have been required to give a bond. for the faithful performance of their contract. The words following this recital are: "Now, if the said Moffett, Hodgkins & Clarke do faithfully perform the terms of their contract during the C01J.8f,ruction of said work8," etc. If the words should be construed to modify the obligation recited, which includes the performance of the contract, so as to limit it to faithful performance, provided the contractors .sMuld see fit to begin the work of construction, they would be made to contradict the expressed intention of the signers:of would make that instrument as to one of thepurpqses, if not the main purpose for which it was given, entirely needed no seQuritYfor the perfQ;rmance oltha con:' t1'8.Ct, in;case the firm went on and supplied. the works, other than the it had agreed to pay. What they demanded a bond as security,:against was precisely the contingency that had rejeqted bids at nearly the same rates bas . as thos6 offered by Moffett, Hodgkins & -Clarkel and were relying upon them to supply them with water-works. It was against a failure to perform the work, damages to result from delay, and the- possible' increased ,{}ostOfa·new contract, that they demanded and 6btained the seourity ,of a bonel. If the words, the, construction;" etc., contradict and. render impossible of this purpose,they may by an equitable construction,allowable even in. aeGurt of Jaw,' be rejected,- ut res magi8 valtat quam pereat. ' ' Astrictt-echnical cortstl'1lOtion of ,the bond leads to a like result. Obligors by their bond undertake to pay obligee 85,000, the obligation wbevQidupon their doing Iltthingspecified in the bond. Thattbing ds thatlL,H. &0. shallpedOlull the terms of their contract durhig the .conetructionby thamof ,thew-ater-works.'" If this had been done, the "bond -wou1d 'have been discharged. "It has not been done. The act agreed upon is impossible, in view of the fact that M., H. & a.have not constllUCted the and now cannot, do so. Had' the, condition impossible when the ,bond was executed, the liability would have been absolute, for· itwotild have been the obligors' own folly to undertake an condition. Had it,subsequently become impossible by the act of God, the act ofthe law;or the act of the the»' the ha;ve been .saved, for-:no 'prndence of the obligorscbtild ',have' guarded against such:a contingency. 2 Bl. Comm. 84V ··But,
218
vol. 49.
having become impossible by the act of the obligors, the bond has becor.UQisibgle ,and unconditional, and plaintiff may recover the damages actually due them upon it. question is one of damages. After failure to obtain construction of the works by defendants' firm, the city again advertised forbids for precisely the same work, received an offer from another firm at a larger price than that which they, had to pay Moffett, Hodgkins &.Clarke, and, having accepted the ofter, entered into a new contract with such firm. Plaintiff asks to be allowed as damages the difference;in cost to it between the two contracts. This, at least, it is entitled to. The difference, being mere matter of computation, will be referred to a master, his report to ,be subject to exceptions, etc. Let such:anorder be entered.
In re
SCHEJ'ER
etal. 10, 189O-PRoTEsT.
(Circuit CtYlJ,f't, S. D. New, York-January 8,tS99.).
, "A' prOtest,' against appraIsements tnalie of imported merohandill'e in accordance , 2911, :El.ev. SJ;, :Uj ,S., raises, ,within the meaning of section 15, of the ad· minilltrative customs of ,rune 10, 1890, (26 St. p. 131,) a que,etlon as to the con· struction of the law and'the faots resi!ecting the classification of such merchandise, and the rate of duty imposed tl!ereonundel' such, classiftC$tion. :., ., " " . "
n1rr:r1l!R-AriMlIUST1l"lTIVE CUSTOMS ACT OF JUNE
a
SAME-ltEPE,lL OF STATUTE..
SectiOn 2911 1 Rev. St., was' not rapealed by section 10 of the administrativecu,. ,toms act, but 1S still in force. ' ,,'.' ",
D.uringSeptember, 1890, Schefer, Schramm & Vogel imported from a foreign into the United States at the portol New York certain merchandise consisting of cotton hosiery and skirts of similar kind, but quaUty I and charged at an average price. The local appraiser at that port, in appraising the value of this merchandise, applied theprincJple,laid down in section 2911, Rev. St. U.S., which reads as foUo,ws:, "Whenever articles composed wholly or in part of wool or cotton, of similar kind; but different quality, are found 'in the same package, charged at an average it shall be the dnty of the appraisers to adopt the value of the best article ,contained in such package, and so charged 8S the average value ot the whole."', ' , ' ., Within the time specified in section 13 of the administrative customs act of June 10, 1890, (26 St. U. S. p. 131, c. 407,) the importers gave notice in wldting to the collector of that port of their dissatisfaction with the made by the local appraiser, and, pursuant to the directions I;)f the collector, a reappraisement was made by one of theUniwd who sustained the decision of the localapStates praiser in: appraising the value as aforesaid. Thereafter the importers
AtLa,w.