Caletti v. State

PULLEN, P. J. This is an appeal from a judgment in favor of defendant in an action brought on a construction contract for certain road work on a state highway in Mendocino County. During the work a slide occurred, and the dispute here is as to the method of measuring its cubic contents.

The contract provided that roadway excavation would include the removal of slides outside the limits of the cross section which came into the roadway through no fault of the contractor. The contract also provided that, “quantities of excavation will be computed by the method of average end areas.” The issue here is what is meant by “average end areas.”

Appellant contends that in computing the quantities of excavation by this method, or in this ease at least, the center line of the highway must be used as the third dimension. The slide here occurred upon a curve and respondent .claims that the use of the center line as a base under such conditions results in an error, pointing out that if the center line is [304]on a curve and the excavation is measured on the inside of the curve, the error results in a determination of a larger quantity than was actually excavated; if the material to be measured is on the outside of the curve, the error results in a finding of a smaller quantity than was actually excavated.

Upon this question the trial court received testimony from various engineers—qualified experts—as to the meaning of the term “average end areas,” and found that “the defendant employed what is known as ‘ the correction for curvature; ’ that the so-called correction for curvature was and is a part of the method of measuring quantities by the ‘ method of average end areas’ within the usual, common and ordinary meaning of said term, where the center line is on a curve; that the curvature at the place herein involved was ‘on a curve.' ”

Section 1644 of the Civil Code provides that words in a contract are to be understood in their ordinary and popular sense, unless used by the parties in a technical sense, in which case the latter is accepted, and section 1645 following, states that technical words are to be interpreted as usually understood by persons in the professions to which they apply.

The trial court properly received evidence of experts, which evidence fully supported the foregoing finding of fact. Here it is claimed by appellant that the contract was susceptible of two interpretations and the method contended for by appellant had been applied by the parties in previous computation of materials handled on this particular job, and the interpretation of the language had been established by usage between these parties.