Southern Pacific Co. v. Grangers' Business Ass'n

GRAY, J.,

pro

tem.

The operator of a public warehouse, engaged in warehousing, cleaning and storing grain for shippers, appeals from a judgment in favor of a common carrier for demurrage on cars consigned to such shippers in its care. This judgment is based upon the following agreement between the parties: “Being fully acquainted with the terms ... of the average basis for settling for detention to cars as set forth in . . . the car demurrage rules . . .

and being desirous of availing ourselves of this alternate method of settlement

. . . we . . . agree ... (1) that with respect to all cars . . .

handled for

. . . our account ... we will fully observe and comply with . . . said rules and (2) will make prompt payment of all

demurrage charges accruing

thereunder ...” (Italics and numerals ours.) The separate and distinct obligations to be performed by appellant, as promisor, definitely and unambiguously expressed, were twofold: The compliance with the rules as to cars handled for its account and (2) the prompt payment of all charges, accruing, irrespective of whom they were to accrue against. In the absence of any ambiguity, the language of the contract is to govern its interpretation. (Civ. Code, secs. 1638, 1639.)

By an unwarranted blending of these two distinct promises appellant argues that, as it promised to pay demurrage charges, accruing on cars handled for its account, and, as the cars were handled for the account of consignors and consignees, who shipped their grain in these ears, in care of appellant, no liability on its part arose. The fallacy of this argument consists of forcibly merging two distinct and separate promises into one, contrary to the express terms of the contract and thereby creating a new qualified promise, not contemplated by the .parties, in lieu of two distinct promises, assumed by them. Furthermore, since appellant’s business consisted exclusively of warehousing cars consigned to others, in its care, no liability could ever arise under such interpretation, which would therefore violate section 1643 of the Civil Code requiring such interpretation

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