
    The Mills-Carleton Company v. Huberty et al.
    
      In harmonizing apparently conñicting clauses of contract — They must be construed so as to give effect — To intention of parties — Rule of interpretation.
    
    In harmonizing apparently conflicting clauses of a contract they must be construed so as to give effect to the intention of the parties as gathered from the whole instrument, and where the object to be accomplished is declared in the instrument the clause which contributes most essentially to that object will control.
    (No. 12475
    Decided April 18, 1911.)
    Error to the Circuit Court of Cuyahoga county.
    The Mills-Carleton Company brought suit in the common pleas court of Cuyahoga county against George Huberty on an account for lumber and building material which it claimed to have sold and delivered to Huberty. A second cause of action is contained in the petition, in which plaintiff sets up a mechanic’s lien on certain real estate belonging to Huberty to secure the account referred to. The answer of defendant denies the averments of the petition, and then alleges that on August 9, 19Ó5, “He entered into a written agreement with plaintiff whereby he guaranteed the account of H. G. Schmitt, who was then under contract with this defendant for the erection of a certain building on the premises described in the petition, limiting his guarantee to the amount of $3,844, which was the original estimate for the lumber and which was all he agreed to pay.
    “Said defendant states that he has paid plaintiff the aforesaid sum of $3,844. That he never contracted with them- for lumber other than his agreement to guarantee the account of said Schmitt who purchased said lumber and to whom all of said lumber was delivered.”
    The cause was tried to a jury and at the conclusion of the plaintiff’s evidence the court on motion of defendant Huberty directed the jury to return a verdict in his favor. Judgment on this verdict was affirmed by the circuit court and this proceeding is brought to reverse the judgments of the courts below.
    Other pertinent facts are stated in the opinion.
    
      Messrs. Treadway & Marlatt, for plaintiff in error.
    We submit that there is no such ambiguity or uncertainty in the language used as to require the aid of extrinsic evidence to show the intention of the parties. If the meaning of a written statement is clear, effect must be given to that meaning even though the parties intended something else. 2 Parsons on Contracts (9 ed.), 656; Oil Co. v. Lane, 59 Ohio St., 307; Felter v. Weybright, 8 Ohio, 167; McCoy v. Bixbee, 6 Ohio, 310; Smith v. Hankins, 1 Cin., 449, 27 Ohio St., 371; Coal Co. v. Mining Co., 40 Ohio St., 559; Wolfe v. Scarborough, 2 Ohio St., 362; Railroad Co. v. Reid, 6 O. D., 273; Day v. Brown, 2 Ohio, 345.
    A special provision will override a general only where the two cannot stand together. Insurance Co. v. Roost, 55 Ohio St., 581. To construe these words as a limitation of liability completely nullifies the words “I will pay you for all lumber” in the second line of the agreement and in the last line of the agreement. The two cannot stand together under this construction. Again this contract should be construed with reference to its object and as an- entirety and accordingly the whole contract must be considered in endeavoring to get at the intention of the parties even though the object of the inquiry be the meaning of a doubtful isolated clause. Railway Co. v. Reid, 6 O. D., 273; University v. Cincinnati, 13 Dec., 741.
    Plaintiff in error should recover upon the ground of estoppel. Estoppel may be raised by silence a's well as by representations, and the following cases illustrate the principle, "that he who is silent when he should speak, must" be silent when he would speak,” although the facts, of course, differ. Bank v. Morgan, 117 U. S., 96; Cairncross v. Lorimer, 7 Jurist N. S., 149; Staton v. Bryant 55 Miss., 261; Sullivan v. M’Connell, 73 Fed. Rep., 130; Buckingham v. Smith, 10 Ohio, 288; Trout Club Co. v. Sporting Club, 8 O. C. D., 693, 56 Ohio St., 749.
    
      Messrs. Hidy, Klein & Harris, for defendants in error.
    It is clear that the lumber which Pluberty authorized plaintiff to charge to his account, and for which he promised to pay, was the lumber "for which said Schmitt has given you an order, date of August 8th, ult.,” and that this order was based on plaintiff’s “estimate of August 4th, No. 134, amounting to $3,844.00.” This lumber thus described and its price fixed, and no other lumber, is what, by the terms of the writing the plaintiff is authorized to charge to Huberty’s account, and for which Huberty agrees to pay. There is nothing obscure, equivocal or ambiguous about the language; it is plain, clear and intelligible; there is nothing for the court to construe or interpret.
   Johnson, J.

The lumber furnished by the plaintiff company was used in the construction of a factory in Cleveland.

Before any of the lumber was delivered there was the following correspondence between .the parties:

“Cleveland, Ohio, Aug. 9, 1905.
“The Mills-Gray-Carleton Co.,
“City.
“Dear Sirs:
“You can charge to my account and I will pay you for all lumber delivered to H. G. Schmitt for use in construction of a building on my lots, Bebden Street, lumber to be delivered and charged on basis your estimate of August 4th, No. 134, amounting to $3,844.00, for which said Schmitt has given you an order date of August 8th ult. I will pay you on or before the 10th of each month, taking advantage of the usual 2 per cent, discount for all lumber delivered and accepted the preceding month.
“(Signed) Geo. Huberty.
“Witness:
“A. J. Gregory, Agt.”

To this The Mills-Carleton Company, the The Mills-Gray-Carleton Co., replied as follows:

“Cleveland, Ohio, Aug. 10, 1905.
“Mr. Geo. Huberty,
“823‘ St. Clair St.,
“City.
“Dear Sir:
“Mr. Gregory has handed to us a letter from you authorizing us to charge to your account the lumber for your new building, as per our estimate of August 4th, $3,844.00, to be used by H. G. Schmitt in erecting a building on your property.
“We thank you for this letter as it puts the matter in a shape which is very satisfactory to us.
“Yours truly,
“(Signed) The Mills-Gray-Carleton Co.,
“By C. H. Carleton. President.”

The contention of the plaintiff is, that by the contract thus made, Huberty became liable to pay plaintiff for all of the lumber furnished by it which was used in construction of the building. While the defendant contends that his liability was conclusively limited to the sum of $3,844.00, and that for any other or additional material, plaintiff would have to look to the contractor, Schmitt.

The testimony offered by plaintiff showed that as the work progressed certain changes were ordered by Huberty in the construction of the building. These required additional lumber and the reworking of some of the lumber covered by the estimate referred to. Some of the lumber covered by the estimate was not needed and was not delivered. From time to time Huberty made payments to plaintiff, and when these payments amounted to $3,844.00 which wás after all of the material had been delivered, he refused to make any further payments.

The total value of the lumber furnished by plaintiff, which was used in the construction of the building, was $344.51 in excess of the amount which defendant paid.

Testimony was tendered by plaintiff tending to show that extras were ordered by Huberty himself and that statements were rendered by plaintiff to him as the work progressed for the material furnished, the bills for material which was in addition, to that originally estimated being marked “extra.” That Huberty made no objection to any of these charges until after the material was furnished.

The courts below sustained the contention of defendant that his liability was conclusively limited to the amount stated in his letter of August 9, 1905, and that the subsequent matters referred to did not change or add to that limit.

The letter of defendant of August 9th, opens with the explicit statement, “You can charge to my account and I will pay you for all lumber delivered to H. G. Schmitt for use in • construction of building on my lots,” etc.

The concluding sentence is the promise: “I will pay you on or before the 10th of each month, * * * for all lumber delivered and accepted the preceding month.”

This language is not uncertain or ambiguous, and leaves no room for discussion as to its meaning.

The contract must be construed with reference to its object and as one entire contract.

It will be observed that the material was to be charged to account of Huberty, himself, and the promise was to pay for all lumber delivered.

The object to be ■ accomplished as expressed in the contract was the construction of the building, in which the material was to be used. It is a matter of common knowledge that few, if any, buildings are carried to completion without changes which either .increase or.diminish the requirements of material.

But it is claimed that the clause, “lumber to be delivered and charged on basis your estimate of August 4th, amounting to $3,844.00,” is conclusive in its legal effect and cuts down the comprehensive terms in the rest of the letter.

The word “estimate” is defined in Webster’s Dictionary as follows: “A rough or approximate calculation, as an estimate of the cost of a building or the quantity of water in a pond.”

The use of the word “estimate” in this contract taken in its ordinary meaning and import, excludes the idea of an exact detailed schedule or list of material which schedule or list was by the agreement not to be increased or diminished as the building progressed. On the contrary, the use of the word “estimate,” in connection with the other language of the cpntract, and the object to be accomplished, clearly leads to the conclusion that the basis referred to in the contract, on which the amount of $3,844.00 was arrived at, was an approximate calculation or estimate of the lumber required and which might be altered in the carrying out of the work.

This construction harmonizes and gives effect to the entire instrument, a result enjoined by familiar rules. -

We are strengthened in this view by the conduct of the parties subsequent to the making of the contract. As already shown, defendant ordered additional lumber himself; statements were rendered to him for all material furnished as the work progressed, and the bills for extra material were marked “extra,” all without objection from him.

And even if the contract had explicitly limited Huberty’s liability for lumber furnished on Schmitt’s original order to the amount named, he would nevertheless be responsible for material which he personally purchased in addition thereto.

We think therefore that the common pleas court , erred in directing a verdict for defendant and the judgments of the courts below will be reversed.

Judgments reversed.

Spear, C. J., Davis, Spiauck, Price and Donahue, JJ., concur.  