Opinion
No. 38969.
Filed December 21, 1973.
1. Summary Judgments. Motion for summary judgment is to be granted only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. 2. Contracts. When the terms of an agreement have been intended in a different sense by the parties to it, that sense is to prevail against either party in which he had reason to suppose the other understood it. 3. Contracts: Trial: Summary Judgments. The meaning of an ambiguity in a contract is a matter of fact to be determined in the same manner as other questions of fact which preclude summary judgment. 4. Contracts: Trial. When a contract and the facts and circumstances that aid in ascertaining the intent of the parties are insufficient to raise an issue of fact, interpretation of the contract is a matter of law. 5. Contracts: Negligence: Damages. Performance of a contract for appraisal of damage to property of A. by reason of a building that contractors of B. were to construct on B.'s adjoining property with temporary work on A.'s property, and for payment of the appraisal by B., may afford a defense to A.'s claims against B.'s architect and contractors and a subcontractor for negligent damage to A.'s property.
Appeal from the District Court for Buffalo County: S. S. SIDNER, Judge. Affirmed.
Ginsburg, Rosenberg, Ginsburg Krivosha, for appellants.
Ross Schroeder, Luebs, Tracy, Huebner, Dowding Betzer, and Tye, Worlock, Tye, Jacobsen Orr, for appellees.
Heard before WHITE, C. J., SPENCER, BOSLAUGH, SMITH, McCOWN, NEWTON, and CLINTON, JJ.
Charles E. Grantham and wife sought recovery for negligent damage to their service station from construction of a building on adjacent property owned by defendant General Telephone Company of the Midwest. Prior to the beginning of the work the parties had agreed that the architect would appraise damage to the Grantham property from the project. On remand in Grantham v. General Telephone Co., 187 Neb. 647, 193 N.W.2d 449 (1972), Granthams abandoned their claim for loss of profits. On motions of all defendants the District Court then entered summary judgments. Granthams appeal.
Granthams assert that (1) the contractor, Roeder Brothers Construction, the architect, Helleberg and Helleberg, and a subcontractor, Francis Young, defendants, were only incidental beneficiaries of the above agreement, (2) the District Court erroneously interpreted the agreement to immunize defendants from liability for negligent damage to their property, although at least Granthams intended only damage from non-negligent conduct, and (3) performance of the alleged arbitration agreement was not final at common law.
Under the agreement, dated June 11, 1969, Granthams granted General Telephone an easement for the contractor to drive sheet piling along and 1 foot inside the property line of Granthams. They also granted the company, its agents, and contractors ingress and egress for performance of the project. Pulling and removal of the pilings was to occur after the wall and foundation of the building had set. The provision for appraisal read: "Helleberg and Helleberg, Architects, shall inspect the improvements upon Grantham's premises above described immediately before construction and immediately after the contractor pulls the piling, and any damage to said buildings and improvements which in the opinion of the architects are caused by said construction shall be the liability of the Company to Grantham and the Company shall pay to Grantham the amount of said damage, if any, as certified by said architects in full settlement and satisfaction of any claim hereunder."
The construction work began approximately June 12, 1969. The pilings were driven and pulled by Young under supervision of Roeder Brothers. All parties concur that the work damaged the service station. Helleberg inspected the property in accordance with the agreement.
On April 29, 1970, Helleberg certified that pursuant to the Granthams-General Telephone agreement, $3,000 was owing Granthams for the damage. General Telephone and Roeder Brothers then paid $3,000 into the registry of the District Court for the benefit of Granthams. No one contends that commencement of this action preceded the certification by Helleberg.
Motion for summary judgment is to be granted only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. 25-1332, R.R.S. 1943.
When the terms of an agreement have been intended in a different sense by the parties to it, that sense is to prevail against either party in which he had reason to suppose the other understood it. 25-1217, R.R.S. 1943. The meaning of an ambiguity in a contract is a matter of fact to be determined in the same manner as other questions of fact which preclude summary judgment. When a contract and the facts and circumstances that aid in ascertaining the intent of the parties are insufficient to raise an issue of fact, however, interpretation of the contract is a matter of law. Bishop Cafeteria Co. v. Ford, 177 Neb. 600 at 615 to 617, 129 N.W.2d 581 at 591, 592 (1964).
Respecting the first assertion of Granthams, no defendant fits common definitions of a creditor or donee beneficiary. See Restatement, Contracts, 133 (1932). In addition privity of contract is not inferable from the record.
On the question of negligence the agreement was not a license for anyone to damage the property of Granthams at will. It freed Granthams, however, from proof of negligence in order for them to recover damages, and it did not imply that determination by Helleberg was to be subject to any questions of negligence. The agreement was to protect all defendants from liability for claims of negligent damage to the Granthams' property from the work, provided Helleberg would have made an effective appraisal.
Defendants have admitted liability and the amount of the appraisal lies in the registry of the District Court for the benefit of Granthams. The latter have not asserted lack of good faith on the part of Helleberg, and the agreement is not unconscionable. Cf. 2-302, U.C.C. (1971). The appraisal of Helleberg was final and conclusive. It foreclosed these claims of Granthams against all defendants as a matter of law.
AFFIRMED.