Musselman v. Stoner

• Decision Date: 01 January 1858
• Citation: 31 Pa. 265
• Parties: Musselman versus Stoner.
• Court: Pennsylvania Supreme Court

31 Pa. 265

Musselman versus Stoner.

Supreme Court of Pennsylvania.

ERROR to the Common Pleas of Lancaster county.

Stevens, for the plaintiff in error.—The court thought that the law fixed the place of the transaction when the written instrument was silent; that no agreement of the parties as to the place could alter such inference of law; and that the place where it must be consummated was wherever Stoner, who was a horse-drover, could be found, or at his house. In this we suppose there was error. An obligation for the payment of money merely requires the tender to be made to the obligee. But if, before the day of payment, the parties agree by parol, that the money should be paid to a third person at his house; or that the obligor and obligee should meet at a particular place to pay and receive the money; can it be said that such agreement cannot be proved; and that payment to the third person, or a tender at the place agreed on, is not good? It contradicts no part of the obligation; it only modifies the law by making a law for themselves — it is no contradiction of the written instrument.

But we cannot agree that this contract is like an obligation for the payment of money, and makes a tender by the defendant necessary to the plaintiff wherever found. A payment to be made in specific articles is always subject to arrangement by the parties as to the place of tender: 14 S. & R. 283; 2 Dall. 173; 1 Yeates 135; Renshaw v. Gans, 7 Barr 119; Thomas' Co. Litt., § 341, ch. 27, p. 56; 1 Pars. on Cont. 447; Bixby v. Whitney, 5 Greenl. 192; Aldrich v. Albee, 1 Id. 120; Bean v. Simpson, 16 Maine 49; 2 Pars. on Cont. 67; Ellis v. Thompson, 3 M & W. 445; Atwood v. Clark, 2 Greenl. 249; Lobdell v. Hopkins, 5 Cow. 516, 518.

Hiester, for the defendant in error.—Where one party agrees to deliver goods to another, or to make payment in portable articles, at a specified time, it is well settled that the vendor must take the goods to the vendee: 1 Pars. on Cont. 447; Goodwin v. Holbrook, 4 Wend. 377; Barr v. Myers, 3 W. & S. 295; Chipman on Cont. 25; Roberts v. Beatty, 2 Penn. R. 63.

The law having ascertained the defendant's duty under his written agreement, it could not be changed by evidence of any contemporaneous verbal arrangement: 1 Greenl. Ev. 277; Farmers' and Drovers' Bank v. Fordyce, 1 Barr 455; Chitty on Cont. 102; Renner v. Bank of Columbia, 9 Wheat. 587; Trustees v. Stetson, 5 Pick. 506; Spring v. Lovett, 11 Pick. 417; Foster v. Jolly, 1 C. M. & R. 703; Adams v. Wordly, 1 M. & W. 374-80; Free v. Hawkins, 8 Taunt. 92; Sice v. Cunningham, 1 Cow. 397.

But the precise point raised by the plaintiff in error, that it was competent to show by parol testimony where the payment or delivery was to be made, because the agreement was silent on the subject, has been repeatedly decided against him: Thompson v. Ketchum, 8 Johns. 189; Smith v. Jeffries, 15 M. & W. 561; Dix v. Otis, 5 Pick. 38; Weston v. Eames, 1 Taunt. 115; Warren v. Wheeler, 8 Met. 97; Stub v. Stub, 3 Barr 251; Woods v. Wallace, 10 Harris 171; Lyon v. Miller, 12 Harris 392; Kennedy v. Plank Road Co., 1 Casey 224; Commonwealth v. Deck, 4 Id. 497.

The opinion of the court was delivered by LOWRIE, C. J.

Much of what we have said in Miller v. Fichthorn is applicable here, and we need not repeat the discussion. The instrument on which this suit is brought certainly needs some explanation of the circumstances under which it was written, in order to put the court into a proper position for an intelligent interpretation and construction of it. The interpretation of what is written presents no difficulty; but the instrument is incomplete in not naming the place of delivery: how shall this be supplied?

As neither statutes, nor other written evidences of relations, can be expected to express the whole intention of those who frame them, and especially when they are providing for unknown future exigencies; or to express it always with grammatical accuracy and as some thoughts are almost sure to be left for inference and implication, according to the nature of the relation, and of the circumstances that may arise; interpretation naturally divides itself into two essentially different functions. One of these is interpretation proper, which merely defines the intention expressed by the words of the writing; and the other is construction, which, by implication or presumption, adds to or corrects the expressed thoughts, so as to supply what has been omitted, and to reform mistakes according to the presumed intention. This division corresponds approximately to the terms grammatical and logical, literal and rational, declarative and extensive interpretation, made use of by authors who treat specially of the subject. This distinction is noticed everywhere; and it is marked even in the Roman law, when it says that such defects are to be supplied by interpretation, or at least by judicial decision (vel interpretatione vel certe jurisdictione suppleri): Dig. 1, 3, 13.

Now, interpretation ascertains the intention as it is written, and construction holds itself in harmony with this intention in supplying omitted expressions and correcting erroneous ones. And, for this, the circumstances are necessary, and this is expressly said by Mr. Justice Ross, in treating of a case of this class: 2 Pa. R. 65. The construction that fixes the place of delivery is not a mere arbitrary one, else it would disregard all circumstances not expressed in the rule; but it is founded on presumptions and inferences of a true intention of the parties. Kent says (2 Comm. 507), "If the place intended by the parties can be inferred, the creditor has no right to appoint a different one. But, if none be designated, and none can be clearly inferred from collateral circumstances, the creditor may designate a reasonable place." And again: "The place is that, which circumstances shall show to be suitable and convenient for the purpose intended, and presumptively in contemplation of the parties when the contract was made."

True enough, on a mere contract to deliver specific articles, it appears, primâ facie, that the debtor is to be the actor, and this must be the presumption until circumstances show the contrary. But even then he is not bound to carry the property about, seeking the creditor, in order to tender it to him, Co Litt. 210 b; and Pothier says, with apparent justice, that if the creditor changes his residence to a distant place, this does not require a delivery there, but at some reasonable place (Obligations, § 513), and Chipman says the same (Contracts for Payment of Specific Articles, 25, 28). A contract to pay a given sum in farm produce, or in manufactured articles, or in store goods, has not the same construction, because the creditor must call to select and demand what he will have: 5 Cow. 516; 20 Wend. 199; Chipman 28-30.

Chipman (p. 25) has strangely misunderstood, and caused others to misunderstand Coke, as declaring the construction of such contracts; yet he speaks only of the mode of tendering performance, when the duty of delivery by the debtor to the creditor is undisputed. Littleton had said, that money must be tendered to the creditor personally; and Coke adds, but bulky and heavy articles, not £20 money, but twenty quarters of wheat, or twenty loads of lumber, are not to be carried about seeking after the creditor; but the debtor must ask him where he wants them. This means only that, when the debtor is bound to tender performance, he is not bound to take up his wheat or furniture, or other article which he cannot conveniently carry about his person, or drive about his ox or horse, and seek out his creditor in person and tender it, as he would money; but should ask him to appoint a reasonable place to receive it. He decides nothing about the construction of the contract; but supposes a case where the debtor is bound to tender a specific article, and then directs how this is to be done. He declares a proper form of tendering performance as a means of avoiding penalties, or litigation; and not at all an absolute rule for construing the intent of the contract. That is no definition of a duty, that depends upon so indefinite a term as "portable articles."

In the case before us, the defendant offered, in substance, to show, that the transaction was an exchange of two horses for two others, and $100 to boot; that it was made at his house, and that at the time of the bargain, and immediately after the writing was executed, it was declared to be part of the...