Milliken

The plaintiff corporation brought this action to recover from the defendants the sum of $13,973 for damages alleged to have been sustained by it on account of the failure of defendants to deliver within the time agreed upon certain steel to be used in the erection of plaintiff's building in the city of San Francisco. The alleged damages consist of the following items: 1. The sum expended by plaintiff in the preparation of the steel for use after its delivery, $577.65, the pleaded agreement being that it should be delivered in condition so that it could be placed as received in the building; 2. Ground rent at the rate of $1400 per month for a period of three months; 3. Interest on the money expended by plaintiff in the building independent of the steel work during the time of the delay, aggregating the sum of $396.32; 4. The loss to plaintiff of the use of the building for three months, alleged to be of the value of $3,000 per month, or a total of $9,000. *Page 346 On the twelfth day of October, 1899, plaintiff leased from one David R. Jones, for a term of ten years and nine months, the said lease to take effect on the first day of October, 1899, at a monthly rental of $1,400, a…

We have given the petition for a rehearing of this cause careful consideration, and are unable to discover any reason for changing our views, as expressed in the main *Page 366 opinion, upon the questions discussed. It may be suggested that, since filing the original opinion in this case, there has come to our notice the recent case of Leonhart v. California Wine Assn., ante, p. 19, [ 89 P. 847 ], in which the court of the first appellate district discusses at some length the question of the resort to a custom or usage of trade for the purpose of interpreting the language of a written or other express contract. The authorities cited therein were not called to our attention by the attorneys in the case before us. We think some of them are applicable here. It appears to be the settled rule in this state, and ought to be, that where the contract is certain in its terms, parol proof of a usage is inadmissible. ( Withers v. Moore, 140 Cal. 591 , [ 74 P. 159 ].) We not only think that the rule thus stated is applicable here, but also reiterate our adherence to the position that, where a statute itself furnishes a rule of interpretation of certain contracts, as we think is the case here,…