A. Leschen & Sons Rope Co. v. Mayflower Gold Mining & Reduction Co.

• Decision Date: 01 November 1909
• Docket Number: 3,026.
• Citation: 173 F. 855
• Parties: A. LESCHEN & SONS ROPE CO. v. MAYFLOWER GOLD MINING & REDUCTION CO.
• Court: U.S. Court of Appeals — Eighth Circuit

173 F. 855

A. LESCHEN & SONS ROPE CO. v. MAYFLOWER GOLD MINING & REDUCTION CO.

No. 3,026.

United States Court of Appeals, Eighth Circuit.

November 1, 1909

Charles C. Butler, for plaintiff in error.

H. M Hogg and C. L. Watson, for defendant in error.

Before SANBORN and VAN DEVANTER, Circuit Judges, and WILLIAM H MUNGER, District Judge.

SANBORN Circuit Judge.

This writ of error was sued out to reverse a judgment in favor of the defendant in error, the Mayflower Gold Mining & Reduction Company, a corporation, upon the pleadings which disclosed these facts: The mining company agreed to buy certain materials for a tramway from the plaintiff in error, A Leschen & Sons Rope Company, a corporation, and to pay it therefor $1,000 on the execution of the contract, $2,500 upon a sight draft with bill of lading attached upon the delivery of a specific part of the goods f.o.b. the cars at St. Louis in the state of Missouri, $2,500 30 days from the date of that bill of lading, $6,600 on a sight draft with bill of lading attached upon the delivery f.o.b. the cars at St. Louis of another specified part of the materials, and $4,200 'to be paid by your (the mining company's) note at sixty (60) days, * * * not later than sixty (60) days from arrival of last shipment,' and the rope company agreed to sell these materials upon condition that the title and ownership thereof should remain in it, and that it might take possession thereof 'in default of the last payment being made. ' The rope company delivered all the materials, the mining company made all the payments, except the last, and gave its note for that, but never paid the note. After the note was dishonored, the rope company replevied the materials, and the court below dismissed its action, on the ground that the mining company had made the last payment in accordance with the terms of the agreement by giving the note, which it had refused to pay.

The argument in support of this conclusion is that by the terms of the contract the parties expressly agreed that the $4,200 was 'to be paid by your (the mining company's) note at sixty (60) days,' that the note was given, and that thereby the $4,200 was paid in the way the parties agreed that it should be paid, so that there was never any default in the last payment, and the title to the property vested in the purchaser. But was this the meaning of the contract? Does this agreement evidence the intention of the parties to it that the title to this property should pass to the vendee when the latter gave its 60-day note? The purpose of all interpretation is to ascertain and to give effect to the intentions of the parties expressed by their writings. The basic rule for the discovery of those intentions is that the court, so far as possible, should put itself in the place of the parties to the contract when their minds met upon the terms of the agreement, and then, for a consideration of the writing itself, of its purpose, and of the circumstances which conditioned its making, endeavor to ascertain what they intended to agree to, upon what sense and meaning of the terms they used their minds actually met. American Bonding Co. v. Pueblo Investment Co., 150 F. 17, 27, 80 C.C.A. 97, 107, 9 L.R.A. (N.S.) 557; Accumulator Co. v. Dubuque St. Ry. Co., 64 F. 70, 74, 12 C.C.A. 37, 41, 42; Salt Lake City v. Smith, 104 F. 457, 462, 43 C.C.A. 637, 643; Fitzgerald v. First National Bank, 114 F. 474, 482, 52 C.C.A. 276, 284.

Where the language of an agreement is contradictory, obscure, or ambiguous, or where its meaning is doubtful, so that the contract is fairly susceptible of two constructions, one of which makes it fair, customary, and such as prudent men would naturally execute, while the other makes it inequitable, unusual, or such as reasonable men would not be likely to enter into, the interpretation which makes it a rational and probable agreement must be preferred to that which makes it an unusual, unfair, or improbable contract. Pressed Steel Car Co. v. Eastern Ry. Co., 121 F. 609, 611, 57 C.C.A. 635, 637; Coghlan v. Stetson (C.C.) 19 F. 727, 729; Jacobs v. Spalding, 71 Wis. 177, 186, 36 N.W. 608; Russell v. Allerton;, 108 N.Y. 288, 282, 15 N.E. 391.

The intention of the parties, when manifest, or when ascertained from the written agreement, must control and be enforced, without regard to inapt expressions or the dry words of the contract, unless that intention is directly contrary to the plain sense of the binding words of the agreement. American Bonding Co. v. Pueblo Investment Co., 150 F. 17, 28, 80 C.C.A. 97, 108; Prentice v. Duluth, etc., Forwarding Co., 58 F. 437, 443, 7 C.C.A. 293, 298; Westervelt v. Mohrenstecher, 76 F. 118, 121, 22 C.C.A. 93, 95, 34 L.R.A. 477; Tillitt v. Mann, 104 F. 421, 424, 43 C.C.A. 617, 619; Salt Lake City v. Smith, 104 F. 457, 462, 43 C.C.A. 637, 643, 644; Uinta Tunnel, etc., Co. v. Ajax Gold Mining Co., 141 F. 563, 567, 73 C.C.A. 35; U.S. Fidelity & G. Co. v. Board of Com'rs, 145 F. 144, 148, 76 C.C.A. 114; Witt v. Railway Company, 38 Minn. 122, 127, 35 N.W. 862; Driscoll v. Green, 59 N.H. 101; Johnson v. Simpson, 36 N.H. 91; Walsh v. Hill, 38 Cal. 481, 486, 487.

The acceptance by a creditor of the promissory note of his debtor for his antecedent debt does not extinguish it, unless the note is paid. It is not an absolute, but a conditional, payment of the debt. Downey v. Hicks, 14 How. 240, 243, 14 L.Ed. 404; The Kimball, 3 Wall. 37, 45, 18 L.Ed. 50; The Emily Souder, 17 Wall. 666, 670, 21 L.Ed. 683; Peter v. Beverly, 10 Pet. 532, 568, 9 L.Ed. 522; Lyman v. The Bank of the United States, 12 How. 225, 243, 13 L.Ed. 965; In re Worcester County, 102 F. 808, 814, 42 C.C.A. 637, 643; Atlas S.S. Ltd. v. Colombian Land Company, 102 F. 358, 359, 42 C.C.A. 398, 399; Cheltenham Stone & Gravel Co. v. Gates Iron Works, 23 Ill.App. 635, 637; Id. 124 Ill. 623, 626, 16 N.E. 923; Hine v. Roberts, 48 Conn. 267, 271, 40 Am.Rep. 170; First National Bank of Pueblo v. Newton, 10 Colo. 161, 171, 14 P. 428.

A clear agreement by the creditor that he will take the risk of the payment of the note and that the debt is discharged thereby or the indubitable intention of both the parties to that effect, is requisite to extinguish a debt by the taking of the debtor's note. An agreement that a debt shall be paid, or shall be payable,...