ARK.] PITTSBURG STEEL CO. V. WOOD. 537 PITTSBURG STEEL COMPANY V. WOOD. Opinion delivered October 20, 1913. CONTRACTS—CON ST RUCTION — QUESTION OF LAW. — In the absence of ambiguity, or fraud in its p rocurement, the construction of a contract is a matter of law for the court. (Page 542.)
538 PITTSBURG STEEL CO. V. WOOD. [109 2. CONTRACTS — INTENTION OF THE PARTIES. — The intention of the parties to a written contract should be derived from the whole instrument. (Page 542.) 3. CONTRACTS—TERMS— DUTY TO KNOW TERMS.—A party who executes a written contract is bound under the law to know its contents, and, in the absence of fraud or ambiguity, he can not excuse himself from its terms by saying he did not read it or know what it contained. (Page 542.) Appeal from Union Circuit Court; George W. Flays, Judge; reversed. Marsh & Flenniken, for appellant. It was improper to submit the contract to the jury for interpretation, because it was susceptible of but one reasonable construction, and that construction is the natural meaning of the words used in it. There was no oral testimony that either explained, altered or varied it or that threw any light on its meaning in any way. Its construction was wholly a matter for the court. 20 Ark. 583; 67 Ark. 553 ; 75 Ark. 55; 9 Cyc. 591 ; 53 Ark. 156. If there is any conflict between the clauses, "Fencing 73 per cent off list, f. o. b. Memphis, Tenn.," and "All above f. o. b. Strong, Ark.," the first quoted stipulation would prevail because it is a particular clause relating to a particular thing, whereas the latter clause is general and must be controlled by the particular clause. 72 Ark. 630; 193 U. S. 551. Appellee's excuse for not understanding the contract is not sound in law. He is not an ignorant man, though his testimony shows that he was careless. It was his duty to read the contract and inform himself of its contents. 34 Ark. 316; 91 U. S. 45; 9 Cyc. 391, § 5; Id. 392. R. G. Harper, for appellee. The words, "All above f. o. b. Strong, Ark.," would, to any merchant of average intelligence, be understood to mean everything above, including all the goods that he had purchased; and since it was evident that the order on its face was uncertain and indefinite, it was proper for the court to admit oral testimony. Where the provisions of a contract are apparently conflicting, it is .per-
ARK.] PITTSBURG STEEL CO. v. WOOD. 539 missible to show the circumstances surrounding the transaction and the conduct of the parties under the contract. 52 Ark. 65; Id. 95; Id. 94; 46 Ark. 131; 75 Ark. 58. The court properly submitted the issues to the jury. KTRBY, J. Appellant company sued W. S. Wood in the justice court to recover a balance of $39.86, claimed to be due on some merchandise shipped by it from Memphis to him at Strong, Arkansas, consisting of fencing, wire, nails and staples. On appeal to the circuit court, judgment was rendered in favor of Wood, from which judgment appellant brings this appeal. The amount sued for was the exact amount of the freight charges from Mem-phis, Tenn., the point of shipment, to the point of destination, Strong, Arkansas. Appellant claims the fencing was sold to him at an agreed price, f. o. b. Memphis, Tenn., and the wire nails and staples at a price f. o. b. Strong; appellee insisting that the entire bill of goods was to be sold f. o. b. Strong, for the agreed price. The written order, signed by appellee, expressing the terms of the contract, was read in evidence and is as follows :
540 PITTSBURG STEEL CO. V. WOOD. [109 PITTSBURG STEEL COMPANY Pittsburg, Pa. Ship to W. S. Wood at Strong, Ark. Invoice to same at same. When ship, earliest convenience. This order subject to approval of Pittsburgh Steel Company and is payable only by current funds in Pittsburgh, New York•or Chicago. All agreements contingent upon strikes, accidents and other causes beyond the control of the seller. FENCES, GATES, TOOLS, ETC. BARBED WIRE, NAILS, I I STAPLES, ETC. 40 20 10 Total Style Distance Kind 50-80 rod spools 4pt. rod rod rod rods No. between of galv. P. P. Hog per rolls rollsrolls stays Fence 2 32 60-80 rod spools 2pt. galv. Star cattle per spool 1 66 25 250 5819 6" Spec. 2-40d common @ P.& G. barrel 2 26 24 480 328 6" Reg. 3-30d common. 45 .900 267 6" 4-20d -10-10d .4 25 500 267 12" Reg. 16- 8d 4C 50- 6d 2- 3d it Te rms due net 5-1-'11 subject t o a dis-1- 8d fine. count of 2%for ca shif p aid befor e 3-10- 1- 8d casing. 1911 . In terest at t he rat e of 6%p er an-6 Kegs 1 1-8 pol num allo wed for an ticipa ted paym ent staples 2 26 from date of paym ent to March 1, 1911. Smooth wire @ base 2 06 Set tlement t o be made by note upon 400 No. 12 galv. recei pt of invoice. smooth in 1-lb bundles, 2.51. Th esed isco unts appl y from lis t. 400 No. 12 galv. Aug. 1, 1907. smooth, 50-lb. bundles, .05 per bundle extra 1000 lb.; No. 14 galv. smooth, 2.71. 1000 lbs. No. 14 galv. smooth in half catch wt. bundles .05 per bundle extra. No agreementsexcept those stated onorder will be recognized by this Company. Fencing 73 per cent off list, F. 0. B. Mem-All above F. 0. B. Strong, phis, Tenn. Ark. Gates and stretchers per cent off list, Terms of payment 60 days F. 0. B. net. Splicers and fence tools per cent off list, Two per cent off ten days F. 0. B. from date of invoice. Terms of payment. Salesman, N. W. Smith. W. S. Wood, Buyer.
ARK.] PITTSBURG STEEL CO. v. WOOD. 541 - The salesman testified that appellee executed the contract and that there was no agreement that the entire car- was to be delivered at Strong and that Mr. Wood did not tell him he wouldn't buy it unless it was sold f. o. b. Strong. Appellee denied owing the account, stated that he did not agree to pay the freight on any part of the merchandise purchased, and that it was his understanding that it was all to be delivered f. o. b. Strong; just like it reads above his signature, "All above goods, f. o. b. Strong." That when he signed the order he glanced up and noticed above the place for the signature, "All above goods f. s o. b. Strong," and that if he had not understood that the goods were to be delivered he would not have signed the order. He admitted that he signed the order ; that he did not notice the line, "Fencing 73 per cent off, f. o. b. Memphis, Tenn." That he did not always read every line of an order, and having seen ;the "f. o. b. Strong," supposed that it stated the terms and that he kept a duplicate of the order, which was introduced in evidence. That the order was made out in his store and handed to him right away, and that he filed it away and did not think any more about it until the question came up about the- freight when he looked it up and noticed that it did have some stuff on the. left-hand column, marked f. o. b. Memphis ; that that was the firSt time he ever knew the order had been taken that way. One of the cleFlis in his store testified that he heard part of , the conversation when the trade was made and heard Mr. Wood tell the salesman at the time the order was executed that he wouldn't buy the wire unless it was de-' livered at Strong. The salesman stated that the words, "All above goods f. o. b. Strong," mean only the items on the right-hand side of the double column of the order. That the left side specified the terms of payment. The court refused to instruct the jury to find for the plaintiff and instructed them that if they should find from a preponderance of the testimohy that the contract provided that a certain part of the bill of goods was to be delivered f. o. b. Strong, and that another part was sold f. o. b. Memphis, that they would find for the -plaintiff,
542 PITTSBURG STEEL CO. V. WOOD. [109 and that if they should find under the terms of the contract all the property was to be delivered f. o. b. cars at Strong, they would find for the defendant. The written order executed by appellant expressed the terms of the contract and its construction was a ques-: tion for the court, there being no ambiguity arising from it and no fraud claimed to have been practiced in its procurement. 9 Cyc. 591; Estes v. Booth, 20 Ark. 583 Arkansas Fire Insurance Co. v. Wilson, 67 Ark. 553 ;- Dugan v. Kelly, 75 Ark. 55. The intent of the parties to a written contract should be derived from the whole instrument. Kelly v. Dooling, 23 Ark. 582; Railway v. Williams, 53 Ark. 58; Vaugine v. Taylor, 18 Ark. 65. Appellant does not contend that the contract as executed has been changed, but only says that he did not in fact examine it sufficiently and closely to discover the provision that the fencing was priced f. o. b. Memphis. He executed the order, and, no fraud having been practiced upon him in its procurement and there being no ambiguity in its terms, he can not excuse himself from his liability thereon by saying that he did not read it all and that if he had understood that it read as it appears to read that he would not have signed it. He is bound, under the law, to know the contents of a paper signed by him, and he can not excuse himself by saying he did'not read it or know what it contained. . Upton v. Tribilcock, 91 IL S. 45; 9 Cyc. 391; Stewart v. Fleming, 105 Ark. 37. The terms of the • contract are plain and unambiguous and the court erred in not instructing a verdict for the appellant. The judgment is reversed and judgment will be entered here for the amount sued for. It is so ordered.
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.