Colvocoresses v. W. S. Wasserman Co.

• Decision Date: 10 January 1938
• Citation: 196 A. 181,39 Del. 71
• Court: Delaware Superior Court
• Parties: GEORGE M. COLVOCORESSES v. W. S. WASSERMAN Co., a corporation of the State of Delaware

196 A. 181

39 Del. 71

GEORGE M. COLVOCORESSES v. W. S. WASSERMAN Co., a corporation of the State of Delaware

Superior Court of Delaware, New Castle County

January 10, 1938

Superior Court for New Castle County, Action of Assumpsit on a Contract, No. 122, September Term, 1935.

Case heard on demurrer to the first and second counts of the plaintiff's amended declaration.

That declaration consisted of two special counts and the common counts. The language of the first count was identical with the declaration, as originally filed by the plaintiff, and was held bad on demurrer in Colvocoresses v. Wasserman Co. decided by this court on February 29th, 1936. ^[1]

As it was originally drawn, the second count of the declaration, in substance, alleged that the parties intended the word "acquire," used in the contract declared on, to have a particular specified meaning. That count was held bad on demurrer in Colvocoresses v. W. S. Wasserman Co., 8 W. W. Harr. (38 Del.) 253, 190 A. 607. The same count, as amended, also alleged that by local usage in the mining world, the word "acquire" had a certain specified meaning, which was well known to the parties when the contract declared on was made, and that that word was used in accordance with the meaning given to it by that usage. It further alleged that the plaintiff was entitled to recover the sum of $ 12,000 from the defendant as a liquidated consideration in lieu of employment as a mine manager in accordance with the terms of their contract, dated February 11th, 1935; a copy of which was attached to the declaration. The plaintiff's rights under that contract were, in part derived from the so-called Congress contract between T. J Byrne, Trustee, and Neil C. Clark, dated February 7th, 1935; the assignment of that contract by Clark to F. W. Reid, Jr. on February 9th, 1935, and the contract between Reid and the plaintiff, also dated February 9th, 1935. As in all of the prior declarations, copies of these papers were attached to the amended second count of the plaintiff's declaration.

The demurrer is sustained.

Dudley C. Lunt for plaintiff.

Aaron Finger (of Richards, Layton and Finger) for defendant.

LAYTON C. J., HARRINGTON and RODNEY, J. J., sitting.

OPINION

HARRINGTON, J.

The defendant has demurred to the first and second counts of the plaintiff's amended declaration. It is not necessary for us to give any further consideration to the first count because the plaintiff concedes that a count containing precisely the same allegations was before this court on demurrer in the unreported case of Colvocoresses v. Wasserman Co. decided February 29th, 1936, and was then held to be so defective in substance that the plaintiff could not base a cause of action on it. This was because the plaintiff's rights necessarily depended on the acquisition by the defendant of title to the mill tailings and mine dumps on the Congress property, and because that count, when read in connection with the contract declared on and the prior contracts attached to it, and composing a part of it, did not allege the acquisition of any such title by him.

The amended second count of the declaration alleges, in part:

1. That "when the word 'acquire' is used in connection with, or in reference to mining property, or transactions, or to the exploitation of minerals, mine dumps, or mill tailings, colloquial usage invests that word with an ambiguous content, inclusive of two or more concepts in the legal heirarchy of property rights. And the plaintiff further avers that this usage both existed and was well known to the plaintiff and to the defendant prior to and at the time of the execution of their said agreement, and that it was employed by both parties from the inception of and throughout their dealings and negotiations inter sese from prior to the execution of their said agreement until sometime after the date of a certain parol agreement as is hereinafter averred."

2. That "in employing in the aforesaid agreement between the plaintiff and the defendant, the word 'acquire' with reference to the said mill tailings and mine dumps covered by the said Congress Contract, it was used in accordance with the aforesaid colloquial usage, to refer to the acquisition by the defendant of such rights as it would acquire with respect to the said mill tailings and mine dumps by the payment of the said sum of Six Thousand Dollars for the benefit of the said Reid under the aforesaid Congress Contract and the various assignments thereof heretofore averred and by the assignment by the plaintiff to the defendant of all of the rights of the plaintiff under the said Reid Agreement. "

In Colvocoresses v. W. S. Wasserman Co., 8 W. W. Harr. (38 Del.) 253, 190 A. 607, the declaration demurred to, among other things, alleged that the word "acquire," appearing in the contract declared on, was intended by the parties to have a particular specified meaning. In fact, substantially the same meaning that the plaintiff now alleges local usage gives that word.

In sustaining the demurrer, because of that averment, we said, "Where, as in this case, the language of the contract is not in any sense ambiguous, its meaning is ordinarily a question of law for the court to ascertain from the instrument itself, and allegations as to the intent of the parties to a contract, with respect to the meaning of the words used, and whether such intent is shown by subsequent acts, or by the declarations of the parties made at or about the time of the execution of that contract, or otherwise, are usually of no importance" in construing it. See, also, Crockett v. Green, 3 Del. Ch. 466; 3 Willist. on Cont., Rev. Ed., § 630; Wig. on Evid., p. 386, §§ 2462, 2463, 2465.

In 12 Harvard Law Review 412, 420, Mr. Justice Holmes, in considering the same question, also, tersely said: "I do not suppose that you could prove, for purposes of construction, as distinguished from avoidance, an oral declaration or even an agreement that words in a dispositive instrument making sense as they stand should have a different meaning from the common one; for instance, that the parties to a contract orally agreed that when they wrote 500 it should mean 100. * * *"

The rule laid down in Colvocoresses v. W. S. Wasserman Co., 8 W. W. Harr. (38 Del.) 253, 190 A. 607, may be, in part, governed by reasons of policy, as well as by definite rules of law, Wigmore on Evidence, §§ 2462, 2463, 2465, but at any rate it does not dispose of the question before us.

Professor Thayer lays down the broad general rule that, "In contracts it was always recognized that familiar words may have different meanings in different places, so that 'every bargain as to such a thing shall have relation to the custom of the country where it is made.'" Thayer's Prelim. Treat. on Evid. 419, note; 3 Willist. on Cont., Rev. Ed., § 650.

But, notwithstanding his statement, in the early days of the common law, it seems that words had a formal significance and were usually supposed to have only one unalterable meaning. 22 Columbia Law Review 741; Wig. on Evid., §§ 2461-2463.

Mr. Williston, therefore, points out that even for the purpose of interpreting the meaning of a written contract, it may be doubted how far it was allowable in the early stages of the law to show that a word in it, having a clear and fixed ordinary meaning, bore a meaning contrary to its usual significance, if nothing in the context showed that such a particular meaning was intended. 3 Willist. on Contracts, Rev. Ed., § 650; see, also, Wig. on Evid., § 2461; 22 Columb. Law Rev. 741.

There was perhaps some conflict in the cases, but when there was no ambiguity in the language of a contract, either on its face, or when applied to the matters and things covered by it, perhaps the old rule against destroying the plain meaning of the words used usually prohibited the use of extrinsic evidence of local usage to aid in ascertaining the meaning of such words. Willist. on Contracts, Rev. Ed., § 290; Wig. on Evid., §§ 2461-2463; Tatman v. Barrett, 8 Del. 226, 3 Houst. 226; see, also, Crockett v. Green, 3 Del. Ch. 466; Penn Steel Castings & Machine Co. v. Wilmington Malleable Iron Co., 17 Del. 337, 1 Penne. 337, 41 A. 236.

That general rule is still applied in some States in this country. 3 Willist. on Contracts, Rev. Ed., § 650; Wig. on Evid., § 2461; 22 Columb. Law Rev. 741.

It seems, however, that since an early date, some evidence of surrounding circumstances has been admitted to aid in interpreting the meaning of a contract when its language, if given the usual and normal meaning, is ambiguous, either on its face or when applied to the particular facts. This was certainly true where, by the known usage of art, trade and commerce, or the like, words used had acquired a peculiar and special or technical meaning distinct from their ordinary and popular meaning. Penn Steel Castings & Machine Co. v. Wilmington Malleable Iron Co., 17 Del. 337, 1 Penne. 337, 41 A. 236; Crockett v. Green, 3 Del. Ch. 466; Wig. on Evid., § 2464.

Applying the same general principles, it would seem that in most cases if a word or phrase used in a contract, and even though not of a technical nature, has a particular and special meaning by local usage, or habit of speech, which was known to the parties when the contract was made, evidence of that meaning should be admitted to aid in construing that contract. Smith v. Wilson, 3 Barn. & Adol. 728, 110 Eng. Rep 266; Grant v. Maddox, 15 Mees & Welsb. 737, 153 Eng. Rep. 1048; Clayton v. Gregson, 5 A. & E. 302, 111 Eng. Rep. 1180; Eustis Min. Co. v. Beer, Sondheimer & Co., (D. C.) 239 F. 976; 3 Willist. on Contracts, Rev. Ed., §§ 629, 630, 631, 648, 650; Restat. Contracts, § 246 (a); Wig. on Evid., §§ 2463, 2464; 12 Harv. ...