32 Mo.App. 387 (Mo.App. 1888), Belch v. Miller

Citation:32 Mo.App. 387
Opinion Judge:RAMSAY, J.
Party Name:ELIZA C. BELCH, Executrix of J. ED. BELCH, Deceased, Appellant, v. PHIL. T. MILLER et al., Respondents.
Attorney:McIntyre & Wagner, for the appellant. J. L. Smith and F. M. Brown, for the respondents.
Judge Panel:HALL, J., concurs; ELLISON, P. J., in the result.
Case Date:November 19, 1888
Court:Court of Appeals of Missouri
 
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Page 387

32 Mo.App. 387 (Mo.App. 1888)

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,...

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