Monnett v. Monnett

• Decision Date: 22 May 1888
• Citation: 46 Ohio St. 30,17 N.E. 659
• Parties: MONNETT v. MONNETT et al.
• Court: Ohio Supreme Court

17 N.E. 659

46 Ohio St. 30

MONNETT v. MONNETT et al.

Supreme Court of Ohio.

May 22, 1888

Error to circuit court, Crawford county.

The plaintiff in error, who was plaintiff below, on the 20th day of May, 1882, commenced his action in the court of common pleas of Crawford county against the administrators of the estate of Abraham Monnett, deceased, upon the following written instrument: ‘ BUCYRUS, OHIO, February 22, 1877. The Woolen-Mill Company of Bucyrus, Ohio, having sold to A Monnett, of Marion county, Ohio, one-half of woolen-mill property for the sum of seven thousand five hundred dollars ($7,500.00; ) two thousand five hundred dollars ($2,500.00) to be paid April 1, 1877, the other five thousand ($5,000.00) with the following provisions: After the above A. Monnett receives dividends to the amount of 10 per cent. on the money he puts into mill and manufactures, T. J. Monnett is to receive dividends, as interest on the five thousand dollars ($5,000.00) above named, pro rata with the firm for the term of five years; and, if the mills do not pay dividends up to 10 per cent. on the money put in by A Monnett, above named, at the expiration of the five years, he may continue the same conditions until they do. A MONNETT.’ Indorsed: ‘ Received, on the within article, two thousand five hundred dollars, April 1 1877.’ The case made by the petition, with its amendments, is that the Woolen-Mills Company mentioned in the writing was at its date the name of a copartnership consisting of the plaintiff and James G. Frazer, who were the owners of the woolen-mill property. The plaintiff sold his undivided interest in the property to Abraham Monnett for the sum of $7,500, and Abraham Monnett executed and delivered to him the written instrument sued on. About the same time Frazer's undivided interest in the property was sold to Quincy A. Rouse and William Rouse; and afterwards, on the 2d day of April 1877, the plaintiff and Frazer, by their joint deed, conveyed the whole of the property to the purchasers; the consideration therein named being $15,000. The Rouses paid $7,500, their half of the purchase price; and Abraham Monnett, in pursuance of his written obligation, paid the plaintiff the $2,500 which by its terms became due April 1, 1877, and which is credited thereon. In April, 1878, Abraham Monnett sold and conveyed his undivided half of the property to Horace Rouse, whereby it is claimed he put it out of his power to further comply with the stipulations of his written agreement; and, after the expiration of five years from its date, the plaintiff brought his action against Abraham Monnett's administrators (he in the mean time having died) to recover the $5,000 alleged to be due, together with interest from April 1, 1877. Before the commencement of the action, a claim therefor, duly authenticated, was presented to the administrators for allowance, and was by them rejected. Four answers were filed by the defendant; but the real defense, and the only one made on the trial, was that contained in the second paragraph of the amended answer, which avers that the written instrument sued on ‘ is ambiguous and uncertain, and does not clearly set out the true agreement made by said parties. That the true agreement made by said parties, and intended to be expressed by said written memorandum, was as follows: Plaintiff sold to said A. Monnett his interest in said woolen-mill property for the sum of twenty-five hundred dollars, to be paid, and which was in fact paid, by said A. Monnett on April 1, 1877, which sum was in full of the purchase price thereof; but plaintiff retained a conditional interest in the earnings of said woolen-mill, as follows: It was agreed that said A. Monnett was first to receive dividends out of the net earnings and profits of said woolen-mills equal to ten per cent. on the amount of money by him put into said mill and manufactures, after which plaintiff was to receive, as his interest in the net earnings and profits thereof, a pro rata dividend thereof with the firm for five years, (to the amount of five thousand dollars; ) provided said woolen-mills earned that amount in excess of the ten per cent. first to be paid to said A. Monnett; but, if said woolen-mill did not earn an excess over said ten per cent. to be paid to said A. Monnett, then plaintiff was to receive nothing, nor have any other or further interest therein.’ The answer contains no prayer for the reformation of the instrument; but in an answer previously filed, ‘ by leave of the court, to conform to the proof in the case,’ containing substantially the same allegations, here is such prayer. The plaintiff replied, controverting the allegations of the answer, and, without objection by either party, the case was tried to a jury. A verdict was returned for the defendant; and, a motion for a new trial having been overruled, a bill of exceptions was taken, purporting to put out all of the evidence and charge of the court, from which it appears that the evidence offered by the defendant on the trial in support of his defense consisted of conversations the witnesses claimed to have had with the plaintiff concerning the terms of the sale to Abraham Monnett, and some testimony relating to the financial condition and business habits of Abraham and the plaintiff. This evidence was permitted to be given over the plaintiff's objection, and he duly excepted. The court in the charge, after stating the points made by the pleadings, said to the jury: ‘ The court finds the said written memorandum attached to the plaintiff's petition, marked ‘ Exhibit A,’ is ambiguous and uncertain in its terms and conditions, and submits the construction thereof to the jury. In giving construction to the same, the intention of the parties will govern. The contract is what Abraham Monnett and Thomas J. Monnett agreed and intended it to be.' To this the plaintiff excepted. The court further charged the jury ‘ that the plaintiff must make out his case by a fair preponderance of the evidence; ’ and also that ‘ the defendants must make out their case by a fair preponderance of the evidence; ’ and, ‘ if the contract is as claimed by the plaintiff, the verdict must be for the plaintiff; ’ and, ‘ if the contract is as claimed by the defendants, the verdict must be for the defendants.’ Judgment was entered on the verdict, and the plaintiff prosecuted error to the circuit court, where the judgment was affirmed, and thereupon filed his petition in error in this court.

Syllabus by the Court

M. executed and delivered to T. J. M. a written instrument, the terms of which are that the Woolen-Mill Company of Bucyrus, Ohio, having sold to M. one-half of the woolen-mill property for the sum of $7,500, $2,500 to be said April 1, 1877, the other $5,000 with the following provisions: ‘ After M. receives dividends to the amount of ten per cent. on the money he puts into the mills, T. J. M. is to receive dividends, as interest on the five thousand dollars, pro rata with the firm for the term of five years, and, if the mills do not pay dividends up to ten per cent. on the money put in by M. at the expiration of five years, he may continue the same conditions until they do.’ Held , that within the rules of evidence which forbid oral testimony to contradict or vary the terms of written agreements, but permit such testimony to prove the circumstances under which they were made, to enable the courts to put themselves in the place of the parties, with all the information possessed by them, the better to understand the terms employed in the contract, and arrive at the intention of the parties, it is competent to show that the Woolen-Mills Company of Bucyrus, Ohio, was the name of a copartnership which consisted of T. J. M. and another person, who, at the date of the instrument, were the owners of the woolen-mills property referred to; that the half thereof stated in the instrument as having been sold to M. was the plaintiff's undivided interest in the property, and that the other copartner's undivided interest was, about that time, sold to another person for the like price; also that after M. executed the instrument, and delivered the same to T. J. M., he paid to him the $2,500 therein stipulated to be paid April 1, 1877, and that thereupon T. J. M. and his copartner united in a deed of conveyance to M. and the other purchaser; the consideration therein expressed being $15,000.

That the purchase price of T. J. M.'s undivided interest in the property is $7,500, to be paid him by M., the purchaser; $2,500 thereof to be paid April 1, 1877, but the other $5,000 not until the expiration of five years, during which time T. J. M. is to receive, as interest thereon, a share of the dividends remaining after M. shall receive dividends equal to 10 per cent. on the amount invested by him in the mill. If the dividends do not equal that amount, the provision for the payment of interest to T. J. M. fails, which enables M. to retain the $5,000 of the purchase money for five years without interest, and to continue, after the expiration of that period, to retain it, on the same conditions as to interest, until the mill shall pay dividends equal to 10 per cent. on his investment. But the principal of $5,000 is payable, in any event, at the end of five years from the date of the instrument, unless M. should then elect to continue the conditions in regard to interest; and a sale by him, before that time, of his interest in the property, is a conclusive election not to do so, whereupon the principal becomes payable absolutely.

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