Caine v. Hagenbarth

• Decision Date: 06 January 1910
• Docket Number: 2094
• Citation: 37 Utah 69,106 P. 945
• Court: Utah Supreme Court
• Parties: CAINE v. HAGENBARTH

106 P. 945

37 Utah 69

CAINE v. HAGENBARTH

No. 2094

Supreme Court of Utah

January 6, 1910

On Application for Rehearing, February 11, 1910.

APPEAL from District Court, Third District; Hon. T. D. Lewis, Judge.

Action by Joseph E. Caine and another against F. J. Hagenbarth.

Judgment for plaintiffs. Defendant appeals.

REVERSED AND REMANDED, WITH DIRECTIONS.

Dickson ELLIS, Ellis, & Schulder for appellant.

APPELLANT'S POINTS.

The question as to what is the true construction of a written instrument is one of law, to be answered by the court. If the writing is upon its face ambiguous, or uncertain, the court may receive evidence as to the situation of the parties and the facts and circumstances surrounding them at the time they entered into the agreement. (Manti City Sav. Bank v Peterson, 33 Utah 209, 216-17; Dwight v. Germania Life Ins. Co., 103 N.Y. 341, 57 Am. St. Rep. 729, 722-4; R. L. Polk Printing Co. v. Smedley, 155 Mich. 249; 2d Parsons on Contracts (4th Ed.), p. 4; Smith, Admr., v Faulkner et al., 12 Gray [Mass.] 251, 254-6.) The burden is on the plaintiffs. (Breckenridge v. Crocker, 78 Cal. 529.) The object of all established rules for the interpretation of contracts is to ascertain the intention of the parties thereto. (2nd Parsons, pp. 7-12; Gibson v. Miney, 1 H. B. L. 569; Rankin v. New England, etc., Mining Co., 4 Nev. 78; V. & T. R. R. Co. v. Lyon Co., 6 Nev. 68; Mutual Life Ins. Co. v. Kelly, 114 F. 268; Walsh v. Hill, 38 Cal. 481; Haverley v. Brumagin, 33 Cal. 394; Darby v. Arrowhead H. S. H. Co., 97 Cal. 384; Piano Mfg. Co. v. Ellis, 68 Mich. 101; Muldoon v. DeLine, 135 N.Y. 150; Gavinzel v. Crump, 22 Wall. 308; 17 Am. & Eng. Ency. of Law, pp. 23-21; Schuykill Navigation Co. v. Moore, 2 Wharton 491; Harrison v. Fortlage, 161 U.S. 57; Cravens v. Mills Co., 16 Am. St. Rep. 298; Francis Bros., etc., v. Heinc Safety Boiler Co., 112 F. 899; Fitzgerald v. First N. Bank, 114 F. 474; Chicago, etc., Ry. v. Reilly, 145 F. 137; Potter's Dwarris on Statutes, p. 143; Ogden v. Glidden, 9 Wis. 40; Hudson Canal Co. v. Penna. Coal Co., 8 Wall. 276.) Where the language of an agreement is contradictory or ambiguous, so that it is fairly susceptible of two constructions, one of which makes it a fair contract, while the other makes it inequitable, the interpretation which makes it rational and probable must be preferred to that which makes of it an unusual, unfair or improbable contract. (Coghlan v. Stetson, 19 F. 737; Washington, etc., Ry. Co. v. Coeur d' Alene Ry. Co., 160 U.S. 77; Salt Lake v. Smith, 104 F. 457; Pressed Steel Car Co. v. Railroad, 121 F. 609; American Bonding Co. v. Pueblo Invest. Co., 150 F. 17. See also Scott v. The United States, 12 Wall, 443; Jacobs v. Spaulding et al., 71 Wis. 177, 186; Turner v. Kearney, 106 Cal. 62, 47; Johnston v. Schenck, 15 Utah 490.) What one party to a contract understands or believes is not to govern its construction, unless such understanding or belief was induced by the conduct or declarations of the other party. (Bank v. Kennedy, 17 Wall, p. 19.) There is no contract, unless the parties thereto assent; and they must assent to the same thing, in the same sense. (1 Parsons on Contracts [5th Ed.], p. 475; 1 Chitty on Contracts, 11th Am. Ed., p. 11; Breckenridge v. Crocker, 78 Cal. 529, 535-537; Hartford & New Haven v. Jackson [24 Conn.], 63 Am. Dec., p. 177; Utley v. Donelson, 94 U.S. 29, 47-48; Harvey v. Duffy, 99 Cal. 401; Menx v. Hogue, 91 Cal. 442, 448; Rovengo v. Defferari, 40 Cal. 459, 462-3; National Bank v. Hall, 101 U.S. 43, 49-50; Rockefeller v. Merritt, 76 F. 909, 915.) There can be no more satisfactory evidence of the actual value of property than that furnished by an actual sale of it by the owner, unless there be evidence that the circumstances under which this sale was made were such as would preclude, or be likely to preclude, the owner realizing a fair price for his property. (The Albert Dumois, 177 U.S. 240, 255; Lynch v. United States, 138 F. 535, 539; Kaufman v. Pittsburg C. & W. R. Co. [Pa. St.], 60 A. 2; Grand Rapids v. Loose, 92 Mich. 92; Hangen v. Hachemeister [114 N.Y.], 11 Am. St. Rep. 691, 695-6; Mayor, etc., of Baltimore v. Smith & S. B. Co., 31 A. 423.) It is contended by plaintiffs that where a contract is ambiguous, the construction must be against the party who is responsible for the ambiguity, and also against the promisor. This is a rule of construction which is never invoked except as a last resort. (See Wharton's Legal Maxims, closing paragraph on page 206; Broom's Legal Maxims, p. 593; 2 Parsons on Contracts [4th Ed.], p. 19-21; 1 Chitty on Contracts, pp. 137-8; 17 Am. and Eng. Law, p. 16.)

C. S. Price and Van Cott, Allison & Riter for respondents.

RESPONDENT'S POINTS.

It is very elementary that the contract of sale is not an option. See 21 Ency. Law (2 Ed.), 924-5. When a person receives title to property and retains it as the defendant did and is to pay for the same in the language stated, he is obligated to pay in any event. (Nunez v. Dantel, 19 Wall. [U.S. ] 560; Johnston v. Schenck, 15 Utah 490; Alvord v. Cook, 174 Mass. 120; Page v. Cook, 164 Mass. 116; Eaton v. Yarborough, 19 Ga. 82; Crooker v. Holmes, 65 Me. 195; Haines v. Weirick, 155 Ind. 548; Noland v. Bull, 33 P. 983 [Ore.]; Hicks v. Shouse, 17 B. Mon. 483. See also to the same effect: De Wolfe v. French, 51 Me. 420; Sears v. Wright, 24 Me. 278; Randall v. Johnson, 59 Miss. 317; McCarty v. Howell, 24 Ill. 342; Button v. Higgins, 38 P. 390; Crass v. Scruggs, 115 Ala. 258; Walters v. McBee, 1 Lea [Tenn.] 364; Paige on Contracts, Sec. 1156; Lewis v. Tifton, 75 Am.Dec. 498; Ubsdel v. Cunningham, 22 Mo. 124; Hood v. Hampton Plains, etc., 106 F. 408.) When an appellate court is asked to set aside the verdict of a jury in a common-law action upon the facts, all conflict in the evidence must be resolved in favor of the party in whose favor the verdict was rendered. (Chicago, etc., Ry. v. Sharp, 63 F. 533; Railroad Co. v. Conger, 5 C. C. A. 411, 56 F. 20; Railroad Co. v. Teeter, 63 F. 527; Railway Co. v. Lowell, 151 U.S. 209, 14 S.Ct. 281; Connor v. Raddon, 16 Utah 418; Smith v. Ireland, 4 Utah 187.) If the contract between the parties is to be interpreted from the standpoint of its being uncertain or ambiguous, an interpretation should be taken which favors the one who parted with his property. (Noonan v. Bradley, 9 Wall. 407; Barney v. Newcomb, 9 Cush. 56; Hawkins v. Graham, 149 Mass. 287; Evans v. Sanders, 33 Am. Dec. 298.) A contract is to be interpreted against the one who is responsible for the ambiguous language. (Christian v. First National Bank, 155 F. 709; Noonan v. Bradley, 9 Wall. [U.S. ] 394, 407, 19 L.Ed. 757; Texas & Pacific Ry. Co. v. Reiss, 183 U.S. 621, 626, 22 S.Ct. 253, 46 L.Ed. 358; Osborne v. Stringham, 4 S.D. 593, 57 N.W. 776; Imperial Fire Ins. Co. v. Coos, 151 U.S. 462-3.) The construction in case of ambiguity or uncertainty is in favor of the one who has parted with his property, or with his premium. (Blankenship v. Decker, 85 P. 1037; Bickford v. Kerwin, 30 Mont. 1, 75 P. 518; Gillet v. Bank of America, 160 N.Y. 549, 55 N.E. 292; Wilson v. Cooper [C. C. ], 95 F. 625; Allen-West Com- Co. v. People's Bank [Ark.], 84 S.W. 1041; Hill v. John P. King Mfg. Co. [Ga.], 3 S.E. 445; Imperial Fire Ins. Co. v. Coos County, 151 U.S. 452, 14 S.Ct. 379, 38 L.Ed. 231; Noonan v. Bradley, 9 Wall. [U.S.] 394, 19 L.Ed. 757; Webster v. Dwelling House Ins. Co., 53 Ohio St. 558, 42 N.E. 546, 30 L. R. A. 719, 53 Am. St. Rep. 658, 9 Cyc. 509.) As authorities to the effect that an isolated sale is not competent evidence of value, we cite: Pate v. Mitchell. 79 Am. Dec. [Ark.] 114, 115; People, etc., v. McCarthy, 8 N.E. [N.Y.] 85, 87; Spring Valley, etc., v. Drinkhouse, 92 Cal. 528, 532; Omaha S. R. Co. v. Todd, 58 N.W. 289 [Neb.], 291. Evidence of sales of similar property is not competent for the purpose of proving value. (Railroad Co. v. Benson, 36 N. J. Law, 557; Railroad Co. v. Hiester, 40 Pa. St. 53; Railroad Co. v. Bunnell, 81 Pa. St. 414; Railroad Co. v. Ziemer, 17 A. 187; Railroad Co. v. Pearson, 35 Cal. 247, 262; Railroad Co. v. Keith, 53 Ga. 178.) Error without prejudice is not ground for reversal. (Snell v. Crowe, 3 Utah 26; Rogers v. Railroad [Utah], 90 P. 1075; Chambers v. Emery, 13 Utah 405; Western, etc., Soc. v. Desky, 24 Utah 347; Jenkins v. Mammoth M. Co. 24 Utah 513.) If it be assumed that error was committed and yet the result would not have been changed by admitting the testimony, still the judgment must be affirmed. (Chambers v. Emery, 13 Utah 405; Wolcott v. Smith, 15 Gray 537; Coal Co. v. Kelly, 156 Ill. 9.) An appellate court will not reverse the judgment for an error of law which did not affect the merits. (Chambers v. Emery, 13 Utah 405; Maynard v. Locomotive, etc., Assn., 16 Utah 150; Compiled Laws of Utah 1907, secs. 3285, 3008).

FRICK, J. STRAUP, C. J., and McCARTY, J., concur.

OPINION

FRICK, J.

On the 17th day of January, 1907, respondents entered into an agreement in writing with the Ludwig Copper Mining Company, a corporation, whereby they were given an option to purchase certain copper mines of said company located in the State of Nevada. The option was good for sixty days at the stipulated price of $ 1,000,000 for the mine, provided the respondents paid $ 5,000 of the purchase price within thirty days from the 17th day of January aforesaid; and thereafter, if the option eventuated in a sale, the purchase price was to be paid, $ 245,000 in two months from the date of the option, $ 250,000 in four months, $ 250,000 in six months, and the remaining $ 250,000 in eight months from said date. This option agreement, by consent of the parties, was deposited with the Anglo-California Bank of San Francisco, Cal., and with it was deposited a check of one of the...