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District Court of Appeal, Third District, California.

WHALEN v. RUIZ et al.

Civ. 7921.

Decided: April 23, 1952

Mull & Pierce, Sacramento, for appellant. Devlin, Devlin & Diepenbrock, Sacramento, for respondent.

Respondents in their petition for a rehearing urge that this court has refused to recognize or accept the evidence of the intention of the parties as shown by their practical construction and performance under the contract. Respondents state that this court failed to mention the supplemental agreement of March 23, 1934, between the counties, the railroad company, and the State of California. By said supplemental agreement certain changes in the overhead structure of the bridge were made at state expense to facilitate its use as a detour during construction of the ‘M’ Street bridge. Under this agreement maintenance of the roadway of the overhead structure and approaches thereto was agreed to be performed temporarily at state expense during the period of the construction of the ‘M’ Street bridge, it being stated that

‘State shall, during the time said overhead structure and approaches are being used for detour purposes, maintain the roadway of said overhead structure and approaches at its expense, and in the event conditions due to increased traffic require additional policing to properly maintain and safeguard traffic during the period of detour State shall assume the entire cost thereof.’

It is apparent that the supplemental agreement merely shifted the duty of the maintenance of a safe bridge from respondent to the State. After the completion of the ‘M’ Street bridge the respondents were in no way relieved from their obligations and duties under the original agreement.

While, as this court held in Thermalito Irrigation District v. California Water Service Co., 108 Cal.App.2d 329, 239 P.2d 109, the construction given to an ambiguous contract by the acts and conduct of the parties with knowledge of its terms before any controversy has arisen as to its meaning is entitled to great weight, there is nothing in the record that would justify, much less compel, a finding that respondents were ever relieved from their obligation to maintain a safe bridge.

The opinion heretofore filed is hereby modified by adding after the word ‘reversed’ at the end of the last paragraph the following: ‘with directions to the trial court to enter judgment in favor of appellant and against respondents for the amount of damages found by the trial court to have been sustained by appellant.’

The petition for rehearing is denied.