1048 . SHIBLEY V. WHITE. [193 SHIBLEY V. WHITE. ,.4-4623 Opinion delivered April 26, 1937. 1. CONTRACTs—MEETING OF MINDS — INSTRUCTION.—In an action by appellee on written contract to erect brick walls for a building, a requested instruction telling the jury that "unless you find there , was a meeting of the minds between the plaintiff and defendant * * * there is no contract" was properly •refused where appellant did not claim that their minds did not ' meet, nor that he did not understand it. 2. CONTRACTS—AMBIGUOUS, NOT NECESSARILY VOID.—In an action for breach of contract to , erect brick walls for a building alleged' to be so uncertain and indefinite as to be incapable of performance or to impose any obligation on the contractor, it was held that, while a contract may be ambiguous, it is not necessarily void ; that absolute certainty is not required ; that that is certain which may be rendered certain ; and that tbe verdict in favor of appellee is supported by sub'stantial evidence. Appeal from Mississippi Circuit Court, Chickdsawba Disfrict; Neill Killough, Judge; affirmed. Reid & Eviärd, Toi. appellant. .-Holland & Barham, for appellee.
ARK.] SHIRLEY V. WHITE. 1049 MEHAFFv, J. This action was instituted in the municipal court at Blytheville, Arkansas, where a judgment was rendered in favor of appellee for $212. The case was appealed to the cirCuit court and a verdict and judgment given there for $200. The complaint filed by the appellee alleged that the appellee and appellant had entered into the following contract : "This being a contract between H. White, contractor and A. G. Shihley, owner. H. White agrees to furnish all material here mentioned : brick, lime, sand, cement, labor and masons. and build walls. Brick walls to. be 13 inches thick. 2 walls to be 55 ft. long, one , wall to be 50 ft. long. The said walls to be 13 inches thick, 3 ft. high. The fire walls on tbe east and west to be 9-in. walls. The 13-inch wall on the •north side to stop at roof. The said A. G. Shibley agrees to advance the said H. White 85 per cent. of the completed work to meet labor and material bill. And on completion of the job A. G. Shibley agrees to pay the said H. White the remainder of the 15 per cent. up to the contract price ivhich is $1,050. "Includes a 25-ft. beam with addition of $10. A. G. Shibley H. White." Appellee alleged that he was to use second-hand brick and was to begin work the following Monday; that he commenced putting material on the ground when appellant stopped him; he alleged he was ready, willing and able to carry out the contract and that he had lost $300 profit through appellant's : breach of the contract. He asked judgment for $300. The appellant filed a demurrer on the ground that the complaint did not state facts sufficient to constitute a cause of action. The demurrer was overruled and answer was filed by appellant denying all the material allegations in the complaint. It alleged that appellee was unable and unwilling to commence .the erection of the brick walls referred to, and that he agreed with appellant to postpone the work thereon until a future date, to be
1050 * SHIBLEY V. WmTE. [193 determined ui.on by agreement of the parties. He denied that appellee would have made a profit. The case is here on appeal. It is contended here by ' the aiipellant that the contraet was so uncertain and , indefinite in its terms as to be ineapable of p'erformance and hnposed nO Obligation on the cOntractOr. The written contraet 'is set'out 'above, and the appellee 'testified at length about the kind of material to be used, and the price he wbuld have to pay for it,'and that he wotild have made a profit Of $300. He testified that he was to build the walls with . second : hand brick, and-that Shibley was 'to furnish the fOundation. He testified at length about the fire Walls and other part4 of the work. He testified that when the contract Was 'signed it Was understood that he was to start work 'the next Monday', and that .appellant asked him.to wait . â week; which he agreed to do; that he went by one *eVening and told , Mk. Shibley-he was ready to go to work; . he put four or 'fivedoads . orsand On the ground, and the . boyhauling the sand told him that Shib-ley wOuld licit permit:him : to-unload one truck load; that Shibley. them- proposed that White build 'the wall by the day, asked him . where he was buying' his brick- and how much he paid' for, it.' The appellee 'refused to take the job by the day and filed suit. Roy Cunningham testified that he hauled some sand to ShibleY's building and Shibley ; told him not to- haul any More . right: -then. Shibley stopped' him, twice and one time would not Jet him anlbad untillMr. White came. The appellant testifiea that-he signed the 'contract sOmetime in AugtiSt, 1935, and that wOrk . was to' commence the folloWing IIOnday ; that White viaA' to try tO buy good second-hand brick which' WOuld coSt $12 to $13 a thonsand; . and if . the appellee could' not get : that sort of brick he was to build with new brick, ' and that White then said he could not build ; White was supposed to put the fOundation hi too. . He, alS'o, testified. at length about the walls and the fire walls.: He teStified that White came arOund to •im and. said he . could . not build. Witness thought this was the first or seCond day after the contract was signed . ; the sand Was hauled . after that, and he told
ARK.] SHLBLEY V. WHITE. 1051 the . boy, to wait. White tried to . get appellant to let him proceed on fhe day ;the case ,was tried in the , municipal court, ,but appellant:was nnwillin . g,; , The, .huilding Shibleyi is ,in is exactly, like.,the ;drawing he has _made 'for ,the proposed addition. ,Ile; testified that , in the municipal:court White had testified . that . the brick , would • cost $0.50 per thousand. , , „ •. Jack Horner then testified about the co,St.....of briek and the number required for the wall. • • The,appeliee 04ified on reb l u t t l t i a elie did not tell Shibley that, he could not build . for the centraet price') that be has in his hand a boOk frona which:you ean I II • • mate any kind of brick or WOrk . or , any , thing . in the: building line; that Mr. Itothel y testified ..Sand* WOUld Cost $2:.50`; ,that it cost witness $1156, and cement 6:5 cents. • It a.ppears from the evidence that ; both -White and Shibley testified that thewalls, were. tb,be built . of secondhand brick, although they dfffered in their testimony as to price of stieh 'brick. 'There WaS no contentibn made ai any time in the lower eburt by appellant that the cOntract was indefinite or that he did not understand it, and beth of them' Signed the Written. ebntract. • ;Appellant' asked the couit to give 'the jurY 'the' following instruction: /: • • - • " There mu4 be. a: meeting of the minds in eVery contract and unless , you find therewas a meeting of the minds between the plaintiff , 4Tici, defendant , in ,this case, there is no contractupen which White can preVail; and he will na be entitled tO kt fjUdgMent •fOr : anYthirig:" • • The courf did not errin refusing , to give an , sr instrne-tion. The aPpellant did'not • _claina• that their minds, did not meet.; He signed the contraet himself and made no elaini : • that he did not under4and it.. „ Appellant calls,attention, to- 6 •11. , C L 644, .§,5,0,„and while it is stated,there that ,the.contraet ,Mustbe certain, it is also stated in the: same section: ,f ',However, thejaw does not favor, but leans against the;destruction of contracts because of uncertainty, ;Therefore the court will, if possible, so construe th,e. contract ,as to carry into effect the reasonable intention of ,the:parties, , iithat can
1052 SHIBLEY V. WHITE. [193 be ascertained. Though there are some formal imperfections in a written contract, still it is sufficient if it contains matter which will enable the court to ascertain the terms and conditions on which the parties intended to bind themselves. The maxim Id certum est, quod certum reddi potest, applies." Twin City Pipe Line Co. v. Harding Glass Co., 283 V. S. 355, 51 S. Ct. 476, 75 L. Ed. 1112, 83 A. L. R. 1168, Appellant calls attention to the caSe of Ashley, Drew & Northern Ry. Co. v. Baggott & Boyd, 125 Ark. 1, 187 S. W. 649. The headnote of that case reads as follows : "Courts neither specifically enforce contracts nor award substantial damages for their breach when they are wanting in certainty ; damages cannot be measured for the breach of an obligation when the nature and extent of the obligation is unknown, being neither certain nor capable of being made certain." It . is certain from the evidence that both parties understood the contract and that it was capable of being made certain. The parties to this contract lived at Blytheville, they were familiar with the building of appellant where these walls 'were to be erected, they knew all about the situation, and while . it may be said the contract is aril-biguous, both parties understood it, and offered evidence as to the time work should begin, the kind of brick to.be used, and the cost of the material. In construing . a contract, the purpose is to ascertain the intention of the parties. Cou'rts may acquaint themselves with persons and circumstances that are subjects of the statements in the written agreement, and are entitled to place themselves in the same situation as the parties who made the contract so as to view the circumstances as they viewed them, and to judge of the meaning of the words and of the correct application of the language to the things described. Inter-Southern Life Ins. Co: v. Shutt, 175 Ark. 1161, 1 S. W. (2d) 801 ; Connelly v. Parkes, 160 Ark. 496, 255 S. W. 22. "If, with the aid of the usual tests and principles of construction, the court is able to ascertain and to
'ARK.] 1053 enforce the intention of the parties,. their agreement Will not be held , uncertain: So an . agreement drawn up by illiterate persons wili not be' held UnCertain, if it is Os-sible for the court to , ascertain their ineaning. While a contraCt, 'incomplete on its . face, may thereby be . iirn-biguous, it is not necessarily void: Absolute certainty is not required. That is certain which may be rendered certain, according to the mailip, Id eertum; est quod cer-tum reddi potest. A prothise not in itself certain may be rendered certain by . a- reference to, soniething certhin." 13 C. J. 268, § 60. The credibility of the witnesses and the weight to 'be given to their testimony are questions for the jUry. The verdict is :supPorted by substantial evidence: The judgment is affirmed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.