Brown v. Markland

• Decision Date: 02 March 1898
• Docket Number: 892
• Citation: 16 Utah 360,52 P. 597
• Court: Utah Supreme Court
• Parties: MARY E. BROWN, RESPONDENT, v. CHARLES B. MARKLAND, APPELLANT

52 P. 597

16 Utah 360

MARY E. BROWN, RESPONDENT, v. CHARLES B. MARKLAND, APPELLANT

No. 892

Supreme Court of Utah

March 2, 1898

Appeal from the Third district court, Tooele county. A. N. Cherry Judge.

Action by Mary E. Brown against Charles B. Markland on a contract. From a judgment for plaintiff, defendant appeals.

Affirmed.

Bennett Harkness, Howat, Bradley & Richards, for appellant.

Brown &amp Henderson, for respondent.

BARTCH, J. ZANE, C. J., and MINER, J., concur.

OPINION

BARTCH, J.:

This is an action upon a contract, which, the plaintiff claims, was made for the benefit of herself and others, although she was not a party thereto. It appears that on April 30, 1894, William A. Frailey and associates, owners of a mine, entered into a written contract with the defendant, whereby, for a certain consideration, they agreed to convey their mine to him free of incumbrance, except a mortgage lien, and certain claims of persons for labor performed and materials furnished at the mine, which mortgage and claims, it is contended, the defend assumed and agreed to pay. The plaintiff maintains she was one of these claimants, and, at the trial, the jury returned a verdict in her favor for the amount of her claim, and the court entered judgment thereon. This appeal is from the judgment.

Counsel for the appellant insist that Exhibit A, an instrument, which the appellant drew up, but which was never signed by the parties to the transaction, constituted a part of the contract of sale, and that the court erred in excluding it from the evidence. Respecting Exhibit A, the witness Richard Gundry, one of the owners of the mine, testified that Markland drew it up; that it was never perfected or executed; and that Exhibit 1, the contract read to the jury, was the only agreement between the grantors and grantee. Another witness testified that the owners, at the time of winding up the transaction, objected to the exhibit in dispute; that it was not a part of the agreement, and was not to be considered so; and that Markland, in the presence of the witness, said: "We'll strike this Exhibit A out. We don't care anything about it." On cross-examination, as a witness in his own behalf, Markland himself said: "Exhibit A was stricken out." From this, and other testimony in the record, it is apparent that the exhibit in question constituted no part of the contract, and was properly rejected.

The next question to be determined is, what were the rights of the respondent under the contract of sale? By the terms of that instrument, the owners bound themselves to convey the property to Markland "free and clear of all liens claims, clouds, and incumbrances whatsoever, except a certain mortgage for about $ 3,700, and interest thereon, given on said property, * * * and except for the claims of persons who have performed labor upon or furnished materials for us in or on said property, and which outstanding claims do not exceed in the aggregate the sum of $ 2,500," the conveyance to be made and delivered on or before May 10, 1894. The mortgage indebtedness and claims Markland assumed and agreed to pay, as stipulated in the writing signed by him and the owners. The deed executed and delivered in pursuance of the agreement bears date May 7, 1894. There is no question that the amount of all the claims, including the respondent's, is less than $ 2,500. At the trial the court permitted evidence to be introduced to show what the intentions of the parties to the transaction were, at the time of the making of the contract of sale, respecting the assumption of the payment of respondent's claim by the appellant. This was objected to as incompetent, on the ground that it was sought thereby to contradict the terms of a written agreement. Under the circumstances of this case, we do not think the objection well taken. One of the issues was whether respondent's claim was one to be paid by virtue of the written contract. It had appeared in evidence that she had furnished money and supplies for the amount of her claim to the owners of the mine, with which to operate it. The contract does not appear to be very specific and certain as to such a claim. It might have been intended to be included within its terms and it might not. Just what the intention of the parties respecting it was by using the expression, "claims of persons who have performed labor upon or furnished material for us in or on said property," must depend upon the surrounding circumstances. In the light of what was said and done at the time of a transaction, of the conduct of the parties thereafter, and of the interpretation which they themselves have placed upon it, a court is more likely to arrive at the real meaning and intent of the parties when the terms employed in an instrument are indefinite or ambiguous. Such evidence is not received to vary the language of the writing, but to explain what was meant by its use. It serves to explain the subject-matter, and enables the court to determine what the instrument referred to and embraced. Its object is to elucidate the meaning of the parties. Therefore, in this case, for the purpose of showing the intended meaning of the expression here under consideration, and to ascertain whether or not the contracting parties intended, by making use of that language, to include the respondent's claim, as a part of the debt to be assumed, parol evidence of what was said and done by them respecting the claim, at the time of the execution of the agreement, was admissible. Where the terms employed in a written instrument are clear and unequivocal, import what the legal obligation is, and are not uncertain as to the object and...