Haven v. Brown

• Decision Date: 01 May 1831
• Citation: 7 Me. 421
• Parties: HAVEN & al. v. BROWN & al
• Court: Maine Supreme Court

7 Me. 421

HAVEN & al. v. BROWN & al

Supreme Judicial Court of Maine, Oxford

May, 1831

THIS was an action of trespass quare clausum fregit, for cutting timber trees on the land of the plaintiffs; which the defendants justified under an alleged license.

In support of the justification, the defendants produced a bond signed by the plaintiffs by William C. Whitney, Esq. their agent conditioned, upon the payment of the purchase-money, to give them a deed of a tract of land, being the lot numbered five in the second range of lots in Hebron, according to the new survey, containing one hundred acres more or less bounded beginning at a certain hemlock tree, and from thence " a southwestern course, on the old line, to the Hogan pond," and thence by the pond, and other bounds, to the beginning. The trespass was done on the northward side of a line drawn southwest from the hemlock tree; which the plaintiffs contended was the course mentioned in the bond. But the writing being somewhat obscured and worn, the defendants read it " a northwestern course" ; and undertook to show an old line leading off northwestwardly from the hemlock tree, and inclining circuitously to the west, in a direction to strike the pond; insisting that this was the line intended by the parties, within which the trespass was done.

To support their construction, the defendants offered evidence to prove that when the bargain was made and the bond executed, Whitney and Brown examined the old line last mentioned, which the former showed as the line to which he sold. To the admission of this testimony the plaintiffs objected; but Parris J. before whom the cause was tried overruled the objection.

The defendants also offered the testimony of Samuel H. King, one of the assessors of Hebron at some period after the execution of the bond; to prove that Mr. Whitney, still continuing the agent of the plaintiffs, and while giving in the valuation of their property, had pointed out on the plan of the town the line in controversy, and made sundry declarations relative thereto; neither of the parties being present at the time. To the admission of this testimony also, the plaintiffs objected; but the judge admitted it; and the witness was further permitted to testify that it was the custom and practice of Mr. Whitney, in the course of his agency, to permit those who held bonds for deeds to occupy the premises under their bonds.

A verdict was returned for the defendants, which was taken subject to the opinion of the court upon the admissibility of the testimony above stated.

After the trial Thomas Foster, one of the plaintiffs, died whereupon the defendants moved that the writ, for this cause should be abated.

Fessenden and Deblois, being called on by the court to sustain the admission of Whitney's declarations as testified by King, argued that they were admissible as part of the res gesta, Whitney still continuing the general agent of the plaintiffs. And they cited, 1 Stark. Ev. 42; Thallimer v. Brinckerhoff, 4 Wend. 394; Farley v. Hastings, 10 Ves. 193; 5 Esp. Rep. 134, 145; 2 Esp. Rep. 211; Cobb v. Lunt, 4 Greenl. 503; Lunt v. Holland, 14 Mass. 149; Hall v. Leonard, 1 Pick. 97; 1 Stark. Ev. 411, 444; Harwood v. Goodright, Cowp. 87; Peisch v. Dixon, 1 Mason 10; 1 Wils. 215; Fonbl. Eq. 25; Newland on Contr. 100, 101; 3 Dane's Abr. 363; Cook v. Booth, Cowp. 819; Blakeley v. Winstanly, 3 D. & E. 279; Rex v. Laindon, 8 D. & E. 356; Davenport v. Mason, 15 Mass. 85; Fowle v. Bigelow, 10 Mass. 379; Leland v. Stone, ib. 459.

N. Emery, Greenleaf and L. Whitman, for the plaintiffs.

OPINION

The opinion of the Court was read at the ensuing October term as drawn up by PARRIS, J.

If a written contract be perfect in itself, and be capable of a clear and intelligible exposition from the terms of which it is composed, it cannot be contradicted or varied by oral testimony upon the principle that the language used by the parties in their contract is the best evidence of their intent.

In this case the language of the written instrument is the principal subject of controversy; the one party contending that the literal reading is " south western course to the old line," the other, that it is " north western course on the old line." It is the language itself, and not its construction, which was to be ascertained. The existence of an old line in a north westerly direction from the hemlock tree would coincide with the reading contended for by the defendants; and inasmuch as it would not contradict the clear and intelligible language of the written instrument, we are inclined to think it a fact proper to be proved, and that the evidence offered for that purpose was rightly admitted. So, also, the fact that when the bargain was made and the bond executed, Whitney shew the north westerly line as the one to which he sold, was also corroborative of the position taken by the defendants, that such was the true reading of the instrument.

In Fowle v. Bigelow, 10 Mass. 379, the jury were instructed that the meaning of the parties being uncertain from the words used, and it being out of the power of the court to ascertain their meaning by reference to the body of the instrument, evidence of the acts and doings of the parties contemporaneously with and immediately subsequent to the execution...