Constantine v. McDonald

SULLIVAN, J.

This action was brought to recover a balance due upon an alleged verbal agreement for the excavation of certain rock and earth along the line of the C. M. & St. P. Ry. Co. in Shoshone county.

The action was tried by the court with a jury and verdict and judgment were given and entered in favor of the respondents for the sum of $1,272.55 and costs of suit. A motion for a new trial was denied and this appeal is from the judgment and order denying the new trial.

Several errors are assigned but the main question in dispute was whether or not the agreed price for the excavation of rock and earth was to be paid upon measurements in excavations only or in solid beds or masses of rock in its original position in the ground, or whether it was to be measured in. loose formation in ears, as claimed by the respondents.

The evidence clearly shows that the respondents in this case made and entered into a written agreement on or about *344 May 1, 1912. The respondents were Italians and claimed they could not read the written contract. The testimony shows that the leader of these Italians had a copy of said contract two or three days before he signed it; that he was able to testify in this ease without an interpreter. There is no evidence whatever to show that the respondents were prevented from reading said contract • before they signed it, or having it read to them. It is a well-settled rule of law that if a person cannot read the language in which a contract is written, it is as much his duty to procure some person to read and explain it to him before he signs it as it would be to read it before he signed it if he were able to do so, and his failure to obtain a reading and explanation of it is such gross negligence as will estop him from avoiding it on the ground that he was ignorant of its contents. (9 Cyc. 390.)

It would be different if the other contracting party had deceived him or misrepresented the nature and contents of the instrument, but in this case it is not claimed that appellant’s agent in any way deceived respondents. There is no evidence showing that there was any fraud practiced upon these plaintiffs in the'mahing of said contract.

The contract provided that the plaintiffs should receive for earth excavation 25‡ per cubic yard, and for solid rock excavation, 60^ per cubic yard. The respondents testified that their understanding of the contract was that they were to receive 25^ per cubic yard for earth excavation measured loose in the car, and &0‡ per cubic yard for rock measured ■loose in the car, and that the car would hold about a yard and a quarter. They kept account of the number of cars taken out by means of a board with holes in it, and every time they took out a ear, they pegged a hole, and one of their number kept the account of the number of cars taken out each day in a book kept for that purpose. The evidence shows that solid earth or rock will increase in measurement, about 80 per cent over its solid measurement, or measurement before excavated. It also appears that the usual way of measuring such material is by measuring the excavation from which the material is taken and not loose in the ears. The *345 jury evidently concluded that the measurements were to be made of the loose material, and the evidence is insufficient to sustain their verdict.

The judgment must therefore he reversed, and it is so ordered, with costs in favor of the appellant. • Ailshie, C. J., and Stewart, J., concur.

Petition for rehearing denied.