Cheney-bigleow Wire-works v. Sorrell

• Decision Date: 21 October 1886
• Citation: 142 Mass. 442,8 N.E. 332
• Parties: CHENEY-BIGELOW WIRE-WORKS v. SORRELL and others.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

142 Mass. 442

8 N.E. 332

CHENEY-BIGELOW WIRE-WORKS v. SORRELL and others.

Supreme Judicial Court of Massachusetts, Berkshire.

October 21, 1886

COUNSEL

M.E. Couch, for plaintiff.

OPINION

If there were an ambiguity inherent in words themselves, or in the word represented by the letters "pice," the question should have been submitted to the jury as one of fact, to determine, under the circumstances, what the word represented by the letters "pice" was, or what word the writer intended to use. When the words of an instrument are easily read, and present no uncertainty by reason of being partly erased, obscurely written, misspelled, or used in a particular sense, as in the arts and trades, then it is within the business of the court to construe the instrument and to say, as matter of law, what the legal effect of the instrument is. Sheldon v. Benham, 4 Hill, 129, 131. See Burnham v. Allen, 1 Gray, 496, 499. Words misspelled fall within the same class of cases as words obscurely written, or half erased. Pars. Cont. (7th Ed.) marg. p. 493; Neilson v. Harford, 8 Mees. & W. 823; Armstrong v. Burrows, 6 Watts, 266. The plaintiff claims the court made three errors: (1) In not submitting the question of fact to the jury whether the letters "pice" were intended for "piece" or "price;" (2) in ruling that there was an ambiguity inherent in the words themselves; (3) in construing the instrument before the words had been ascertained, as facts, by the jury. Burnham v. Allen, 1 Gray, 496 499; Pars. Cont. (7th Ed.) marg. p. 449, note b; Id 493, 557, note b; Carbarga v. Seeger, 17 Pa.St. 514 516, 519; Sheldon v. Benham, 4 Hill, 129, 131; Neilson v. Harford, ubi supra; Armstrong v. Burrows, ubi supra.

S. Proctor Thayer, for defendants.

Patent ambiguities are to be dealt with by the court alone. 1 Greenl. Ev (13th Ed.) § 280; Remon v. Hayward, 2 Adol. & E. 666. And if the court cannot ascertain the meaning and intention of a writing from its language, it is a case of hopeless and incurable uncertainty; and the writing cannot be enforced. 1 Greenl.Ev. (13th Ed.) 300; Worthington v. Hylyer, 4 Mass. 205; Blackmer v. Davis, 128 Mass. 541. The rulings of the court were sufficiently favorable to the plaintiff. McCulloch v. Eagle Ins. Co., 1 Pick. 278; Lewis v. Browning, 130 Mass. 175.

MORTON C.J.

This is an action to recover the price of a "counter-rail." The plaintiff put in evidence a postal-card, signed by the defendants, of which the substance is as follows "Please send us pice of counter-screen like draught." Upon this card was a draught of a counter-screen, with the measurements thereof. The court rightly ruled that this order was unmeaning and unintelligible, and that it could not be construed as an order for piece of counter-railing. It presents a case of incurable uncertainty, and the court properly refused to submit it to the jury to determine whether the...