Burnam v. Banks

• Decision Date: 31 January 1870
• Citation: 45 Mo. 349
• Parties: JOHN F. BURNAM, Respondent, v. MARVIN R. BANKS, Appellant.
• Court: Missouri Supreme Court

45 Mo. 349

JOHN F. BURNAM, Respondent,

v.MARVIN R. BANKS, Appellant.

Supreme Court of Missouri.

January Term, 1870.

Error to Fourth District Court.

O. Guitar, and Moore, for appellant.

R. T. Prewitt, for respondent.

BLISS, Judge, delivered the opinion of the court.

Plaintiff and defendant were both residents of Boone county, Mo., and entered into a written contract to exchange lands; that of the plaintiff being a farm in said Boone county, which he agreed to give for a place near Nashville, Tenn. Before the time for carrying the contract into effect he visited Tennessee, found the property, became dissatisfied with it and with the country, returned to Missouri, and commenced this proceeding to rescind the contract. He charges in his petition, first, a misdescription of the land, and second, fraudulent misrepresentations of its condition and value. Several issues were framed for submission to a jury, and a large number of instructions were presented, some of which were given and some refused. The verdict and judgment were for the plaintiff, and the District Court affirmed the action below.

It is wholly unnecessary to consider the instructions in detail, to decide which are correct and which erroneous; for the question upon which the case turned, and which colored nearly all the instructions, is one of construction. The contract described the Tennessee property as follows: “Twenty acres of ground more or less, lying in Davidson county, Tenn., on the line of the Louisville & Nashville railroad, seven to ten miles north of Nashville, on which is a two-story frame house, four rooms on ground-floor of main house and four above, now owned by Ann R. Banks, and on which H. Frank Banks now resides.” The testimony shows the land to be within the angle of the turnpike roads, and that the house is about one-third of a mile from the railroad by a direct line, and half a mile by the usual road. The plaintiff claimed and the court held that the words “on the line” could not mean in the neighborhood of or near to the line of the road, but that they necessarily implied that the land was bounded by the road. The District Court, in giving the same construction, correctly holds that “the terms of a written instrument are to be understood in their plain, ordinary and popular sense, unless by known usage of trade they have acquired some peculiar meaning, or unless the context evidently points out that the parties intended they should be understood in some other and peculiar sense.” (1 Greenl. Ev. § 278.) The question, then, is, what is the plain, ordinary and popular sense of these words? May they not mean near to as well as at the line? A friend goes to a distant State, and writes that he has purchased a farm and settled “on the line of” a certain railroad. Does he necessarily mean that his farm is bounded by the road? Emigrants follow our new roads as they are spanning the continent, and we say they are settling on the line of the road, which simply means at or near it. And in trading for land, or in answering inquiries in...