Belch v. Miller

• Decision Date: 19 November 1888
• Parties: ELIZA C. BELCH, Executrix of J. ED. BELCH, Deceased, Appellant, v. PHIL. T. MILLER et al., Respondents.
• Court: Kansas Court of Appeals

32 Mo.App. 387

ELIZA C. BELCH, Executrix of J. ED. BELCH, Deceased, Appellant, v. PHIL. T. MILLER et al., Respondents.

Court of Appeals of Missouri, Kansas City.

November 19, 1888

Appeal from Cole Circuit Court. --HON. E. L. EDWARDS, Judge.

REVERSED AND REMANDED.

The case is stated in the opinion.

McIntyre & Wagner, for the appellant.

(1) The construction of a contract should be liberal. Unless an agreement be manifestly intended to be frivolous or inconsistent, it should be so construed as to give it some effect, for the parties must be supposed to have intended something by their agreement. Story on Cont. [5 Ed.] secs 781, 783; Chitty on Cont. 79; Thrall v. Newell, 19 Vt. 202. (2) The construction of a written document is a matter of law, where the meaning is to be ascertained from the document itself; but where the meaning can be understood only from extrinsic facts, the construction is, generally, a question of fact for the jury. Story on Cont. [5 Ed.] secs 793, 818; School District v. Lynch, 33 Conn. 330; Randall v. Thornton, 43 Me. 226. (3) If the meaning of the instrument, by itself, is affected with uncertainty the intention of the parties may be ascertained by extrinsic evidence. Fruin v. Railroad, 89 Mo. 397, 404; Crawford v. Elliott, 78 Mo. 497. And if the ambiguity arises from extrinsic facts, extrinsic evidence may be introduced to explain it. Brewster v. McCall, 15 Conn. 294; Edwards v. Smith, 63 Mo. 119; 1 Greenl. on Evid. secs. 282, 283, and 286, which says: " And the judge cannot pronounce an instrument ambiguous or uncertain until he has brought to his aid all lights afforded by collateral facts and attendant circumstances." (4) In construing a contract the court will always endeavor to give to the contract a rational and just construction, and the comprehensive will be preferred to a more restricted sense, the general to the particular, and the common over the unusual sense. Parsons on Cont. [6 Ed.] 500. The best construction is that which is made by viewing the subject-matter of the contract as the mass of mankind would view it. Schuylkill Nav. Co. v. Moore, 2 Whart. 492; 1 Story on Cont. [6 Ed.] sec. 791. (5) The law will not pronounce a contract incurably uncertain, and therefore null, until it has cast upon it all the light to be gathered, either from a collation of all the words used, or from all contemporaneous facts which extrinsic testimony establishes. 2 Parsons on Cont. [6 Ed.] 562; Careless v. Careless, 19 Ves. 601; Scanlan v. Wright, 13 Pick. 523; Brewster v. McCall, 15 Conn. 274. (6) It is a general rule that a contract is to be expounded according to the law or custom of the place where it is made, where the actual intention of the parties in this respect is not expressly stated, but is to be inferred from the nature, objects and occasion of the contract. 1 Story on Cont. [5 Ed.] sec. 805. (7) If the words in which the promise is expressed admit of more senses than one, the promise is to be construed in the sense in which the promisor had reason to suppose it was understood by the promisee. White v. Hoyt, 73 N.Y. 505, 511. (8) The plaintiff had a right to take a non-suit at any time before the case was submitted to the jury. R. S., 1879, sec. 3556; Collier v. Swinney, 13 Mo. 478; Templeton & McKee v. Wolf, 19 Mo. 101; Lawrence v. Schreve, 26 Mo. 492; Leimer v. Railroad, 26 Mo. 26. (9) The action of the trial court in refusing to allow plaintiff to read in evidence the contract sued on, and to allow other evidence offered by plaintiff, struck at the root of the matter and made it impossible for plaintiff to recover, and plaintiff had no course left but to take a non-suit and then move to set the same aside. Laton v. Riney, 33 Mo. 87; Hageman v. Moreland, 33 Mo. 86; State ex rel. v. Gaddy, 83 Mo. 138.

J. L. Smith and F. M. Brown, for the respondents.

(1) Ichthyologists have placed fishes in the fifth class of vertebrate animals. This class is divided into orders. The species number many hundreds. " " Fish" is a generic term. 2 Johnson's Natural History, 419, et seq.; Essay in Classification (Agassiz), 187; 9 American Encyclopedia, 158; Webster's Unabridged Dictionary--Fish. (2) The clause in the contract, which was excluded by the circuit court from evidence upon the objection of the defendants, provided that defendants should " excavate and remove the earth from the lower end of said pond to the extent of one acre, so as to deepen the bottom thereof sufficient to support fish therein the year around." It is vague and uncertain in that specifications are omitted therefrom; that it is wanting in detail; that material matters are left so obscure and undefined that its meaning cannot be ascertained with sufficient certainty, and it is therefore void, and cannot be made the basis of an action. Bishop on Cont. [Enlarged Ed.] secs. 316, 390; Adkins v. VanBuren, 77 Ind. 447; Chitty on Contracts, 77; 1 Greenl. Ev., sec. 300; Palmer v. Albee, 50 Iowa 429; Culver v. Culver, 39 N.J. 574; Taylor v. Williams, 45 Mo. 80; Underwood v. Underwood, 48 Mo. 527; Pomeroy on Contracts, sec. 145. (3) No court could direct a specific performance of this clause of the contract. The rule in such cases is that if it appears that the things to be performed are in their nature incapable of execution by the court, or that the needful specifications are omitted, or that the material matters are left by the parties so obscure or undefined, or so in want of details, or that the subjects of the agreement are so conflicting or incongruous that the court cannot say whether or not the minds of the parties have met upon all the essential particulars, or if they did, it cannot say exactly upon what substantial terms, or trace out any particular line, where the minds met, etc., the contract will not be enforced. Blanchard v. Railroad, 31 Mich. 43; Railroad v. Lewis, 76 Va. 833; Magee v. McMamus, 12 P. 451; Schneling v. Kenisel, 45 Wis. 325; Nichols v. Williams, 22 N.J.Eq. 63; Cholsan v. Thompson, 2 Wheat. 336; Bowman v. Cunningham, 78 Ill. 48; Fry on Spec. Perf., sec. 317; 1 Story Eq. Jur., sec. 767. An agreement to take of another a house on its being " put in thorough repair, the drawing-rooms to be handsomely decorated according to the present style, paint required both inside and out, although for some parts one coat might be sufficient," is so uncertain that it cannot be said how much or what either party meant, and, there being no evidence of the coincidence of their wills, there is no contract. Taylor v. Portington, 7 DeG., M. & G. 328. An agreement to sell " any of my black-walnut trees, not exceeding fifteen in number, that will girth eight feet six inches in circumference and under ten feet, at two dollars each," will be void for uncertainty where there were more than fifteen such trees on the land. It cannot be told which trees were meant in such case. Dunkart v. Rinehart, 89 N.C. 354. (4) Parol evidence is never admissible to explain an ambiguity not raised by extrinsic facts. Chitty on Cont. [9 Am. Ed.] top p. 107; Dunkart v. Rinehart, supra. Where there was nothing in a contract of lease describing the particular tract of land intended to be leased, and no attempt at description except to give the name of the county and state where the land was situate, the court would not allow the omission to be supplied by parol. Dingman v. Kelley, 17 Ind. 717; Baldwin v. Kerlin, 47 Ind. 426. Where the contract is uncertain, there can be no recovery. Sherman v. Kitsmiller, 7 S. & R. [Pa.] 45; Zaleski v. Clark, 44 Conn. 218. There is no contract unless the parties assent to the same thing, and in the same sense. Thompson v. Ray, 46 Ala. 224. (5) The ambiguity in the clause in said contract is patent, and the plaintiff cannot be " holpen" (cured) by the introduction of extrinsic parol evidence. When a perusal of the instrument shows plainly that something more must be added before the reader can determine what of several things is meant, the rule of law is inflexible that parol evidence cannot be admitted to supply the deficiency. Palmer v. Albee, 50 Iowa 429; Campbell v. Johnson, 44 Mo. 250; Jennings v. Brizeadine, 44 Mo. 334; Bradley v. Packet Co., 13 Peters [[[[[[U. S.] 89; 1 Bouvier's Law Dict. [5 Ed.] 95; 1 Greenl. Ev., sec. 299. This case does not come within the rule laid down in Edwards v. Smith, 63 Mo. 119, and kindred cases. (6) Had plaintiff been permitted to read said vague and uncertain clauses of said contract to the jury, she would have been entitled to but nominal damages. There was no injury alleged for which compensation could be awarded. 1 Sutherland on Dam. 9. There is no available error in sustaining a demurrer to a complaint which is good for nominal damages only. Adkins v. Town, 77 Ind. 447; Axtel v. Chase, 77 Ind. 74. The objection to the introduction of the deposition offered by the plaintiff was in the nature of a demurrer to the petition based upon the grounds that it did not state facts sufficient to constitute a cause of action. (7) An implied contract or an implied obligation may be so vague and indefinite as to be incapable of enforcement. Jones v. Durgin, 16 Mo.App. 370.

RAMSAY J.

This suit was instituted by the appellant Eliza C. Belch, as executrix of the last will of J. Ed. Belch, deceased, against the respondents, founded upon an alleged breach of one of the clauses of a written lease, which was in words and figures following:

" Whereas the parties hereto are desirous of constructing and maintaining, at some convenient and accessible place, a pond for the growth and production of wild rice, celery, asparagus and other feed for wild fowls, to the use therefore, that this may be accomplished, it is hereby agreed by and between J. Ed. Belch, party of the first part, and other persons whose names are

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