Where a party who delivered granite was, by the terms of his
contract, to receive
"the sum of sixty-five cents per cubic foot for all stones when
the quarried dimensions do not exceed twenty cubic feet in each
stone, and one cent additional for every cubic foot of those having
such dimensions exceeding twenty feet,"
held that where the dimensions of a stone exceed twenty
feet, he is entitled for each cubic foot sixty-five cents, and one
cent additional for every cubic fool of the entire stone.
The Dix Island Granite Company, a corporation created under the
laws of New York, contracted with the United States to deliver at
the site of the post office in the City of New York all such
granite as might be required for the construction of the building,
"wrought and dressed in such manner and style of workmanship" as
might be directed by the United States. The latter stipulated to
pay for the stone delivered
"the sum of sixty-five cents per cubic foot for all stones when
the quarried dimensions do not exceed twenty cubic feet in each
stone, and one cent additional for every cubic foot of those having
such dimensions exceeding twenty feet."
Under the contract, the company delivered at the proper time and
place 456,544 cubic feet of granite, of which quantity 353,728
cubic feet were in stones the quarried dimensions of which
severally exceeded twenty cubic feet. In the settlement of the
account, the parties disagreed as to the stipulated price per cubic
foot of stones the general dimensions of which exceeded twenty
feet. The Treasury Department construed the clause as allowing for
each cubic foot of the stone sixty-five cents, and one cent
additional for every cubic foot exceeding twenty -- thus, if the
stone contained twenty-one cubic feet, the price for each cubic
foot of the entire stone was to be sixty-six cents; if it contained
twenty-two cubic feet, the price for each was to be sixty-seven
cents, and so on, increasing the price one cent for each additional
cubic foot. On the other hand, the company construed the clause as
allowing for each cubic foot of the stone sixty-five cents, and one
cent additional for every cubic foot of the entire stone -- thus,
if the stone
Page 105 U. S. 38
contained twenty-one cubic feet, the price was to be sixty-five
cents plus twenty-one cents -- that is, eighty-six cents a cubic
foot of the entire stone; if it contained twenty-two cubic feet,
the price was to be eighty-seven cents, and so on, adding to the
sixty-five cents one cent for each cubic foot of the entire stone.
The difference in the amounts resulting from the two
interpretations as to the price of the granite delivered was
$70,745.74.
The amount allowed by the department was paid on account, the
question of the construction of the clause being reserved for
judicial decision. The company thereupon brought the present action
in the Court of Claims for the difference. Other demands were also
included in the action, but as they were disallowed and the company
has not appealed, no reference need be made to them. For the
difference in the price of the stone mentioned above the company
recovered judgment, and the case is brought here for review.
MR. JUSTICE FIELD, after stating the case, delivered the opinion
of the Court.
The clause of the contract in question upon the interpretation
of which the determination of this case must depend divides the
stones to be delivered into two classes -- those whose dimensions
do not exceed twenty cubic feet and those whose dimensions do
exceed that number of cubic feet. For those of the first class, the
price is fixed as sixty-five cents a cubic foot. For those of the
second class, the price per cubic foot is fluctuating, increasing
with the size of the stone, but the mode of ascertaining this price
is prescribed. It is to add to the sixty-five cents as many cents
as there are cubic feet in the stone, and this sum will constitute
the price per cubic foot. The last clause must therefore be read as
if the words "per cubic foot" were inserted in it; thus, "one cent
additional [per cubic foot] for every cubic foot" of the larger
stones -- that is, for the whole number of such feet in the stone.
It will serve to remove doubt as to the meaning of the clause if we
look at it with the insertion of these words after eliminating
Page 105 U. S. 39
the provision as to the smaller stones. It will then read
thus:
"The party of the first part hereby covenants and agrees to pay
. . . the sum of sixty-five cents per cubic foot for all stones . .
. and one cent additional [per cubic foot] for every cubic
foot"
of the stones -- that is, sixty-five cents for each cubic foot
plus one cent for every cubic foot in the stone. This is the
interpretation for which the claimant contends, and it appears to
us to be the only one permissible from the language used. The
interpretation adopted by the Treasury Department requires the
interpolation of terms excepting from the computation the first
twenty feet, and this exception is inconsistent with the provision
that for "every cubic foot" of the larger stones an additional
price is to be paid.
Nor is there anything unreasonable in the increased price for
the larger stones required by this interpretation. Every contract
must be considered with reference to the subject in respect to
which it is made, and its language construed accordingly. It was
stated by counsel on the argument, and the fact is a matter of
common knowledge, that with builders, materialmen, and architects,
the value, and consequently the price, of dressed building stone
per cubic foot is determined by the size of the stone, and that
this value cumulates with the size; thus, the value of a cubic foot
of granite in a small block -- weighing a single ton, for example
-- is much less than the value of a cubic foot in a larger block
weighing several tons. The difficulty of preparing and moving
blocks weighing several tons is very much greater than that of
preparing and moving an equal quantity of stone is small blocks,
and the expense of time and labor must, of course, be
proportionately greater.
The contract compelled the company to furnish "all such stone"
as might be required in the construction of the post office
building. It left the size of the blocks to the direction of the
United States. They might have called for blocks equal in size to
some of those furnished for the building of the Treasury
Department, which are said to contain five hundred and sixty-three
cubic feet, and to weigh forty-seven tons. The dressing and
transportation of a stone of such a size would have been very much
greater than the dressing and transportation of forty-seven blocks
each of a single ton. We do not,
Page 105 U. S. 40
therefore, appreciate the force of the objection urged by the
government to the construction for which the claimant insists, that
instead of allowing a rate gradually increasing beyond the twenty
feet dimension, it requires, to quote the language of counsel, "a
sudden leap at one point" when the dimensions of the stone pass the
twenty cubic feet limit. Had the government called for blocks all
of one hundred or more cubic feet, as it might have done, the
change would have been as much against the interest of the claimant
as the supposed benefit to him by the change in price at the point
mentioned. The reason suggested -- and we cannot say that it is not
a good one -- for having a fixed price for blocks not exceeding
twenty cubic feet is that blocks of that size and weight could be
handled by a known power, for which provision was made, but for
moving stones of a larger size special arrangements would be
required depending upon their dimensions and weight. It may well be
that at the point where stones can be readily handled, and beyond
which special arrangements are required to move them, a great
change should be made in the price. The company may have been
indifferent as to their weight and size under a specified figure
and yet been unwilling to furnish any of a larger size without a
greatly increased price.
There are many articles in commerce whose value is greatly
increased by a small augmentation in size, and they are
consequently sold at a cumulative price as their dimensions are
enlarged. Plate glass is one of them; diamonds are another. Such
increased value arises either from the greater rarity of the
article of the larger size, or the greater difficulty in its
production or transportation. The cumulative character of the price
in the present case is not exceptional, for the reasons mentioned,
that the difficulty and expense of moving the blocks increase with
their size. It is stated in the able opinion of one of the justices
of the Court of Claims that the price of similar stones bought by
the government for the building of the Treasury Department was
seventy cents per foot for those of ten feet, eighty cents for
those of twenty feet, ninety cents for those of thirty feet, and so
on; in other words, that there was a cumulative price for every
additional cubic foot of the stone.
Page 105 U. S. 41
Applying the contract to the subject to which it relates, we
think that the interpretation placed by the company upon the clause
as to the price was correct.
Judgment affirmed.
MR. CHIEF JUSTICE WAITE, MR. JUSTICE MILLER, and MR. JUSTICE
HARLAN dissented.
