The Montgomery advertiser., 1903-01-16
Contractors Claimed $250,-
 900 of Power Company.
Tn Opinion Sustaining Demurrers of perendant Court Holds That Chapman & Co. Cannot Re-
 cover Under Contract.

II decision of far.reaching importance in the case of William A. Chapman and Company of Providence. R. l.. against the Mon tgomery Water Power Company, The amount involved Is about sz5pOO0 and Judge Jones practically decides that Chapman and Company cannot recover l damages.
 The case grew out of the breaking of 1 the great dam a, Tallassee Falls in Jan- uary, 1902. The dam was under construc- l tio,l by Chapman and Co. as contractors. The decision is on demurrers filed in the equity case by the Water Power Com pany and the demurrers are sustained. A law case covering the same matter will Come up for nearing in the Circuit Court this morning at 10 o'clock. | Tho complete opinion of Judge Jones is | as follows:
 l In the Circuit Court of the United States, for the Middle District of Alabama. | William A. Chapman & Company.
 The Montgomery Water Power Go, | Jones, District Judge.
 | This case has been argued with great ability and candor. In the intervals be- | tween tho sittings of the court, there | has not been opportunity to elaborate 1 the reasons for the conclusion reached. | Every authority that bore upon the case | has been examined, and the arguments or | counsel have been very maturely con | sidered.
 ! One of the subject-matters of the con | tract was the building of a dam across | the Tailapoosa River. It is 2 matter ! of common knowledge that the weather and high water interfere with the pro- gress of such work, and that noods ana | the forces of the current often carry away portions of Q dam before 1t is conn pleted. Parties naturally contemplate such obstacles to the performance Of such undertakings, the loss to be incur | red thereby, the risk to be encountered, | and who shall bear the loss, if any hap pen. In the absence o1 any stipulations | on these points in the contract, all tNAe questions would be determined by tmtY cations which the law raises rom Ihe nature of the undertaking and terms ot ! the contract in other respects Wheh' | however, i4 is apparent from Ahe con- | tract itself, that all these matters have been considered by the. parties thereto, \ and they have made covenants or sttpu- | Iations in respect thereof, the contract itself fixes the measure of the rlgbts and obligations of the parties under every | contingency named therein. It is mat< l ter of common knowledge that the risk | which the employer or contractor Fes- positively may take in the execution ot l such enterprises, enters largely into me amount of the bid and the price to pc | paid. The mere words and phrases used | in d contract are not necessarily conelu- | size of what tho parties undertook to de | Whatever inheres in the contract from | the naturs of the subject matter, as well as the word of the contRact, must be con ! sidered in determining in view or the | whole situation dealt with by the instru- l ment, whether the court should enlarge | or restrain particular terms or words n l the contraet.
 When, however, on the face or the whole instrument, it is apparent that the parties dealt with situations which they l axneeted to arise, and stated what their | re spective rights should be in that event, the court is not justified in departing l from the plain and ordinary meaning Of the terms employed, or raising. contrary | to the words of the instrument, implica- ton of duties or responsibilities, other than the contract itself fixes upon the psrties thereto. Did the parties here 1 have in contemplation the destruction, or washing away of parts of the dam, by
 floods or high water? Did d-they have in
 view the doing of anything which should
 bs found necessary for the protection of the dam against the effect of the water
 during the progress of the work? If so,
 who was to do 1t? Who was to bear the
 less in such contingencies? Did their
 minds meet and come to an agreement
 on these questions7 It Ia impossible to lead the contract without reaching the conclusion that 1t was carefully drawn,
 that the rights of the parties lR the com tingency of accidents, reconstructing damaged work and the like, were care- fully considered, and that language is used, the ordinary significance of which is to put loss for these things upon the contractor, The clause in the speclhca-
 tiOns, relating to accidents, states ex- pressly that the contractor shall assume
 all risks from accidents, casualties. and
 bear all costs, damages or expense which may be incurred or sustained by the
 property of the company, etc., in conse-
 quenee of any accident from any cause, whether directly or indirectly connected
 with the work, so long as the accidents
 or incidents happen turing the execution of the work etc. It is also provided that
 the defendants shall be free from all
 claims for loss or damage of every de- serintion sustained by the contractor, which may occur up to such time as the
 work may be completed and accepted by the company.
 Tn another stipulation, f. is expressly provided that all work damaged as the construction progresses. by floods or from any other cause, must be removed and reconstructed by the contractor at his
 eWn expense. There is also another pro-
 vision whit requires the contractor to furnish and place sufficient eoffeg-dams.
 in length to suit the work under eopstruc-
 ton. and whatever necessary timber
 work, pudding and excavation or pump ing, may bs found necessary for the con-, struetiOn of the work, and excluding the river water. So that the concrete and masonry may remain dry as long as the
 engineer deems necessary, etc, Unusual
 floods and the effect they might have upon the respective undertakings of the parties were In the minds of the parties. The contract. makes specific provision as to that event. By the terms of the con- tract, "unusual floods are declared to be
 an excuse, not for abandoning the conl tract, but only for delay in completing
 the work, and do not absolve the com tractor from any other responsibility ip
 bis undertaking.
 It Is clear, therefore, that every oontinr geney regarding the construction of the dam, from ths time the work commenced
 ''uptll such time as the work is eompiet-
 ad and accepted by the company was In
 the minds of the parties, considered and
 provided for in the contract made by
 them, Thus the measure of the rights of
 the parties Is fixed by their own stlpula-
 lions. and these matters being so fixed,