Miss. River Logging Co. v. Wheelihan

• Decision Date: 13 October 1896
• Citation: 94 Wis. 96,68 N.W. 878
• Parties: MISSISSIPPI RIVER LOGGING CO. v. WHEELIHAN.
• Court: Wisconsin Supreme Court

94 Wis. 96

68 N.W. 878

MISSISSIPPI RIVER LOGGING CO.

v.WHEELIHAN.

Supreme Court of Wisconsin.

Oct. 13, 1896.

Appeal from circuit court, Juneau county; O. B. Wyman, Judge.

Action by the Mississippi River Logging Company against W. P. Wheelihan to recover damages for the breach of an alleged covenant for quiet enjoyment. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

Action to recover damages for breach of an alleged covenant for quiet enjoyment. The complaint states, by appropriate allegations: The making of a conveyance, by deed, of certain real estate to one E. M. Miles on the 4th day of February, 1889, for the consideration of $2,000. That such conveyance contained a covenant in the following words: “That the said W. P. Wheelihan and wife, Margaret, for their heirs, executors, and administrators, do covenant, grant, bargain, and agree to and with the said party of the second part, his heirs and assigns, that the above-bargained premises in the quiet and peaceable possession of the said party of the second part, his heirs and assigns, against all and every person or persons lawfully claiming the whole, or any part thereof, by, through, or under _____ and no other _____ will forever warrant and defend.” That on the 6th day of February, 1889, the said E. M. Miles and Geraldine, his wife, in consideration of $4,700, by a warranty deed with full covenants, conveyed said lands to the plaintiff. Then follow appropriate allegations showing an eviction of the plaintiff from the premises before the commencement of this action. The defendant interposed a general demurrer to the complaint, which demurrer was sustained, and the plaintiff appealed.Jenkins & Jenkins, for appellant.

George L. Williams, for respondent.

MARSHALL, J. (after stating the facts).

It is conceded that the language of the covenant of warranty, as contained in the deed, taking the clause as a whole, without supplying any words by presumption, is meaningless. The respondent covenanted that the grantee in the deed, “his heirs and assigns, in the quiet and peaceable possession of the demised premises against every person claiming any part thereof, by, through, or under _____ and no other _____ will forever warrant and defend.” The learned counsel for the appellant contends that the court should, in effect, add to this clause the word “them” after the word “under,” and “they” after the word “other,” and thereby give meaning thereto. Counsel for the respondent contends that all that part of the covenant after the word “thereof” should be suppressed as surplusage, leaving what would thereby remain a plain, general covenant for quiet enjoyment. The learned circuit judge adopted the former theory, which in effect held that the clause constitutes a limited covenant against the acts of the grantors. The question presented is one of judicial construction, requiring the application of some well-established rules, all coming down, however, to this: That the intention of the parties to a contract must govern, such intention to be determined from the words they see fit to use; that, in cases of uncertainty arising from such words, resort may be had to the situation of the parties and the circumstances of the making of the contract, provided, however, that the court cannot give effect to the intention, however manifest, which plainly violates the rules of language or of law. 2 Pars. Cont. p. 494; Braum v. Rendering Co. (Wis.) 66 N. W. 196. The foregoing rule does not allow the addition of words to a contract unless obviously implied. Where the language is plain and unambiguous, the apparent import of the words must govern. Story, Cont. § 780. But if the words are uncertain, such meaning, within the limitations stated, should be adopted as will best effectuate the intention. “But words should not be constructively put into the contract that are not there.” Parkhurst v. Smith, Willes, 327; Chit. Cont. 106. Prof. Parsons sums up the rules thus: They do not require that the court shall always construe a contract to mean what the parties meant, but that it should give to the contract such construction as will bring it as near to the actual meaning of the parties as the words they see fit to employ, when properly construed, and the rules of law, will permit. 2 Pars. Cont. p. 494. On the particular point here presented he says, “If a blank be left in an instrument, a word or phrase of importance omitted, the omission may be supplied, if the instrument contains the means of supplying it with certainty, otherwise not.” Id. p. 563. It is obvious that some word or words were by mistake omitted from the instrument sued on, which renders the meaning of the covenant uncertain, but we cannot say that such instrument furnishes the means of supplying them with certainty. Therefore it is not within the office of judicial construction to remedy the omission, and thereby save the parties from the consequences of the mistake. The remedy, if any exists, is by a direct proceeding to correct the mistake. Braun v. Rendering Co. (Wis.) 66 N. W. 196; 2 Pars. Cont. p. 496. Notwithstanding what has preceded, we are unable to hold with counsel for appellant that the warranty clause should be split up by rejecting that part only in which the omitted words occur. While the rule is that every part of a contract should be given force and effect if possible, and, if the meaning of the language of a part only is necessarily uncertain, such uncertain part must be suppressed, and effect given to the balance (2 Pars. Cont. p. 505; Riggin v. Love, 72 Ill. 553), if thereby the intention of the parties can be effectuated, but if the uncertainty grows out of the omission of words which cannot be constructively supplied, and that affect the whole clause, evidently designed for a particular purpose, which is rendered uncertain by such omission, then the whole clause must be suppressed. Applying the foregoing to this case, we must hold the whole clause upon which plaintiff bases his cause of action uncertain, beyond the power of the court to remedy it by judicial construction, and...