O. W. Freeguard v. W. C. Bingham

• Decision Date: 04 November 1936
• Parties: O. W. FREEGUARD v. W. C. BINGHAM
• Court: Vermont Supreme Court

187 A. 801

108 Vt. 404

O. W. FREEGUARD v. W. C. BINGHAM

Supreme Court of Vermont

November 4, 1936

October Term, 1936.

Action by Lessee for Loss of Income from Cows Condemned---Construction of Written Instruments---Circumstances to be Considered---Construction a Matter of Law---Admissibility of Parol Evidence---Lease of Farm and Stock Construed---No Obligation on Landlord to Replace Stock Condemned---Obligations of Landlord and Tenant When Buildings Destroyed---When Practical Construction of Contract by Parties Not for Consideration---Admissibility of Parol Evidence of Intention---Remedy When Provision Omitted---Direction of Verdict for Defendant---Exclusion of Evidence of Intent and of Negotiations.

1. A written instrument should be construed, if possible, so as to give effect to every part, and form from the parts a harmonious whole.

2. In construing a written instrument, the nature and condition of the subject matter, the purposes sought to be accomplished and the circumstances in which the parties contract, tending to throw light on their apparent intention at the time the instrument was executed, may be considered.

3. If the language of a written instrument, interpreted in connection with, and in reference to, the nature and condition of the subject matter at the time it was executed and the obvious purpose the parties had in view, is clear and unambiguous, its meaning is a question of law for the court the intent cannot be altered by evidence of extraneous circumstances or by parol evidence of what was said during the negotiations, and the understanding of the parties must be deemed to be that which their own instrument declares.

4. Where written lease of dairy farm provided that landlord "does lease, let" 29 cows and was to "furnish" two horses, there was a bailment for hire of the cows and the landlord was under no obligation to the tenant to replace the number condemned and destroyed as the result of a tuberculosis test.

5. A landlord is under no obligation to rebuild or restore buildings destroyed without his fault if he has not covenanted to do so, and where the tenant expressly agrees to pay rent, he must do so, though the buildings be destroyed if he has not guarded against such a contingency by an exception; and the same rules apply in the case of a bailment for hire.

6. Where the language used in a written instrument is clear and unambiguous so that its intent cannot be altered by evidence of extraneous circumstances, there is no occasion to consider whether the parties may have placed a practical construction upon the agreement by their conduct.

7. Parol evidence of intention is permissible only when the language is capable of two or more constructions, either of which preserves the integrity of the written contract; it is never permissible to carry construction beyond that point and give a meaning to the language used of which it is not fairly capable, though found to accord with the intention of the parties.

8. If parties to lease of farm and cows omitted to provide that cows should be replaced by lessor, the only remedy is to reform the contract in a court of equity.

9. In action by lessee of farm against lessor to recover damages for loss of income resulting when part of cows on farm were condemned in tuberculosis test and an equal number was not replaced by the lessor, where the written agreement merely provided that the defendant "does let, lease" unto the plaintiff his farm and 29 cows, direction of verdict for the defendant held proper.

10. In such circumstances, evidence of intent and of conversations had during negotiations for the lease held inadmissible.

ACTION OF CONTRACT by lessee of farm against lessor to recover for loss of income from cows condemned in tuberculosis test and not replaced by lessor. Plea, the general issue. Trial by jury at the June Term, 1936, Addison County, Jeffords, J., presiding. Verdict directed for the defendant and judgment thereon. The plaintiff excepted. The opinion states the case.

Judgment affirmed.

Wilbur E. Eno for the plaintiff.

Wayne C. Bosworth for the defendant.

Present: POWERS, C. J., SLACK, MOULTON and SHERBURNE, JJ.

OPINION

SHERBURNE

The parties executed a written agreement, providing that the defendant "does lease, let" unto the plaintiff defendant's farm in Ferrisburg "with all tools on said farm, and all stock herein named, twenty-nine cows," etc., from March 1, 1934, to February 28, 1935. Each party agreed to "furnish" two horses, and each agreed to pay for one-half of all feed, fertilizer, seed taxes, etc. The plaintiff agreed to carry on the farm in a good husbandlike manner and to pay as rent one-half of all produce, profits, and increase in stock. The farm was mainly a dairy farm and the principal source of income was from the dairy. Beginning in June, 1934, the cows were tested for tuberculosis, and the result was that fifteen were condemned and had to be disposed of. Only a portion of the condemned cows were replaced by the defendant.

This action is brought to recover for loss of use of cows which the plaintiff claims he should have had during the term. He contends that the defendant should have kept the entire number of twenty-nine good. Verdict was directed for the defendant and the case comes here upon plaintiff's exceptions.

The case turns upon the construction of the contract. There are certain well-established rules for the construction of written instruments to ascertain the intention of the parties. One rule is that it is the duty of the court if possible to construe the instrument so as...