dissenting.
I respectfully dissent. I feel there is a jury question of rather clear and substantial magnitude concerning whether Granthams released or limited any of their rights by virtue of this contract. Consequently, summary judgment was improvidently granted. I also do not agree that the appraisement of Helleberg and Helleberg was final and conclusive or that it foreclosed all claims Granthams had against the other defendants.
The amended petition pleaded failure to comply with the city code in several particulars, and alleged negligent acts of commission and omission which could not have been in the contemplation of the parties in the execution of the contract. However, even assuming Granthams released their normal tort remedies, this would not dispose of my objections to the majority opinion. Such matters as completing the construction improperly and particularly failing to construct the drainageway which is specifically required by paragraph *255 of the contract indicate the inadequacy of the summary judgment procedure.
All defendants argue they can rely upon the contract as a defense, but they disagree as to the reasons. Generally they err in terming this an arbitration agreement. More importantly, they beg the primary question because an arbitration agreement wherein plaintiff does not agree this will be his sole recourse is of no more consequence than an appraisement agreement that has no such limitation of remedies. Hellebergs’ argument concerning the fixing of damages is similarly of no consequence unless Granthams agreed to be bound thereby. General Telephone’s assertion that this is a contract of indemnity is conclusory and unconvincing. Even if General Telephone did agree to indemnify plaintiffs for all damages caused by the construction, it is quite clear that the terms of this indemnification were rather limited. The question is whether plaintiffs agreed this would be their sole recourse in the matter.
In order for the contract to constitute a defense for any of the parties, it is incumbent upon them to show that plaintiffs by this agreement released their rights to sue for damages (assuming the contractual agreement was performed on General Telephone’s part). This requires an examination of the contract. At the outset, it is to be noted that the document contains no provision which states Granthams agree all damages shall be the sole responsibility of General Telephone, and there is also no provision that Granthams release their right to sue for any such damages or words of similar import. The document was drawn by General Telephone. It should be construed most strictly against General Telephone. So construed, one could say there was no such release or limitation. At the very least, this would seem to present a jury question.
The word “hereunder” appearing in the provision for appraisal set out in the- majority opinion refers in my judgment to General Telephone’s liability under the *26contract. The question of whether Granthams agreed to accept this “in full settlement and satisfaction” of all damages caused to their property, ought to be for the jury. General Telephone wrote the contract. If that was the intention, it could have expressed itself as clearly upon this issue as it did on other aspects of the contract.
By virtue of the contract, Granthams granted an easement to General Telephone to drive sheet piling along and 1 foot inside their property line, as well as giving General Telephone, its agents, and contractors ingress and egress for performance of the project. In return for the right to construct upon their land, Granthams received a new remedy from General Telephone in addition to their normal tort remedies and those existing by virtue of the city code. I find nothing in the contract to indicate they released their preexisting remedies as the majority opinion concludes.
I reiterate, there is no express release or limitation of Granthams’ rights against General Telephone or any of the other defendants. I also suggest General Telephone’s greatest potential liability may be under the code, and even if that could be released I would require more precise language. I would not read such an inference into the contract which should be construed against General Telephone.