Foster v. Berg & Co.
| Decision Date | 12 November 1883 |
| Citation | 104 Pa. 324 |
| Parties | Foster <I>versus</I> Berg & Co. |
| Court | Pennsylvania Supreme Court |
Before MERCUR, C. J., GORDON, PAXSON, TRUNKEY, STERRETT and CLARK, JJ. GREEN, J., absent
ERROR to the Court of Common Pleas of Butler county: Of October and November Term 1883, No. 187.
Thompson (McCandless with him), for the plaintiff in error. —There was nothing in this case to take it out of the rule that the construction of writings is exclusively for the court: Parker Bank v. Hartley, 10 Norris 470; Bryant v. Hagerty, 6 Norris 261.
T. C. Campbell (J. D. McJunkin with him), for the defendant in error.—If the court had construed the writings, such construction would necessarily, we contend, have been in our favor, and therefore the plaintiff has suffered no injury of which he can complain. But the fact that ambiguity was introduced by the correspondence between the parties previously to the writings in question, and also by extrinsic evidence, brought the writings, together with the evidence, within the province of the jury: Harvey v. Vandegrift, 8 Norris 346; Bryant v. Hagerty, 6 Norris 256; Allegheny R. R. Co. v. Steele, 11 W. N. C. 113; Esser v. Linderman, 21 P. F. S. 80; McKean v. Wagenblast, 2 Gr. 462; Reynolds v. Richards, 14 Pa. St. 205.
The construction of a written instrument is exclusively for the court; except when it cannot be understood without reference to facts not within the writing, and then the jury are to judge of the whole together. If there be a patent ambiguity in the terms of a written contract the court must solve it; but if ambiguity arise from extrinsic evidence it must be solved by the jury. Not controverting these familiar rules, the defendants contend that under all the testimony the question whether they had notice of Foster's title to the oil at the time it was sold, was for the jury; and, also, that if the court improperly submitted the construction of the writings to the jury, the error was harmless, for the writings fail to give notice of Foster's title.
As the cause was tried the question was submitted upon the writings alone. The plaintiff's fourth point was, "The telegrams and letters in evidence show that the oil was Foster's, and are sufficient to visit the defendants with that knowledge." And the court answered, "We say that is a question for the jury and not for the court, and we have submitted it to the jury." Upon this point, in the charge, the court said, ...
To continue reading
Request your trial
-
Blackwell v. Kercheval
... ... 199, 143 P. 79; ... Slater v. United States Health & Accident Ins. Co. of ... Saginaw, 133 Mich. 347, 95 N.W. 89; Foster v. Berg & ... Co., 104 Pa. 324; Dobbs v. Campbell, 66 Kan ... 805, 72 P. 273; Bliven v. New England Screw Co., 64 ... U.S. 420, 16 L.Ed ... ...
-
Phoenix Silk Manufacturing Co. of Paterson, N.J. v. Reilly
... ... to facts not within the writing, and then the jury are to ... judge of the whole together: Foster v. Berg & Co., ... 104 Pa. 324 ... The ... acts and declarations of the parties may be considered, in ... giving a construction to ... ...
-
Universal Products Company, Incorporated v. Emerson
... ... S.) ... 807; First Nat. Bank v. Dana, 79 N.Y. 108; ... Etting v. Bank of U. S., 24 U.S. 59, 11 ... Wheat. 59, 75, 6 L.Ed. 419; Foster v. Berg & ... Co., 104 Pa. 324 ... The ... record shows that, in attempting to prove the contract relied ... on by it, Universal ... ...
-
Kelly, Murray, Inc. v. Lansdowne Bank & Trust Co.
...LeRoy van Roden, with him Robert B. Greer, for appellee. -- The president of the bank had authority to contract with plaintiff: Foster v. Berg & Co., 104 Pa. 324; Culver v. Ice Co., 206 Pa. 481; Curtis Ko Eune v. Manayunk Co., 260 Pa. 340. Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON,......