Higgins v. California Petroleum & Asphalt Co.

TEMPLE, J. Plaintiff brought this action to recover certain-royalties on certain bituminous rock and liquid asphaltum mined by defendants, for which they agreed to pay “the sum of fifty cents per ton for each and every gross ton.” The trial court, found “that the term ‘gross ton’ as used in the lease .... means two thousand two hundred and forty pounds,” and gave judgment for plaintiff accordingly. From this judgment plaintiff appeals on the judgment-roll alone. His contention is, that the ton contemplated by the contract is a ton of two thousand pounds. A contract of precisely the same terms, in respect of the question now' presented, was before this court in Higgins v. California etc. Co., 109 Cal. 304. It was held in that ease that the ton referred to, upon the .facts as they there appeared, was “equal to two thousand pounds avoirdupois, and no more.” The only question involved here is whether the finding above quoted supports the judgment. Áppe&mt claims that this “is simply a conclusion of law based upon the contract,” and, “if a finding of fact, it is error,, as it is found from the conti^ct itself.” By section 3215 of the Political Code it is provided that ^“Twenty hundred weight constitute a ton.”

The contention of appellant is, that the statute defines the meaning and use of the word “ton” (Pol. Code, see. 3222), and that the lease is unambiguous and cannot be explained or contradicted by parol evidence; therefore, there could have .been no evidence at the trial justifying the finding of the court that the phrase “gross ton” used in the lease meant a long ton- of “two thousand two hundred and forty pounds.” \\

Some decisions are cited apparently holding that a contract of this nature must be conclusively presumed to refer to thd statutory weights and measures—at least, in the absence of a direct and express reference in the contract to a different standard—a'nd in this connection it is argued that the adjective “gross” does not refer to measure—that is, to the number of pounds in the ton —but to the condition of the commodity when weighed, to wit, that the crude and unrefined asphalt is to be weighed, and not the refined product.

[631]I think the question is entirely settled by section 1861 of the Code of Civil Procedure, which reads as follows: “The terms of a writing are presumed to have been used in their primary and general acceptation, but evidence is nevertheless admissible that they have a local, technical, or otherwise peculiar signification, and were so used and understood in the particular instance, in which case the agreement must be construed accordingly.”