61 W. Va. 38 | W. Va. | 1906
E. Lodge Ross complains of a decree of the circuit court of Taylor county, requiring him to specifically perform a contract for the sale of certain coal in place, made between him and Adolphus Armstrong, in a manner greatly variant from his interpretation of the contract, but conforming exactly to that of the plaintiff, Armstrong. The memorandum of the sale executed by Ross and delivered to Armstrong reads as follows: “I sell to A. Armstrong the coal in the-Barnes & Smith land bought by me under decree at last, court. There is to be 27 acres of the coal & if not that much-coal in the land enough to come from the Smith adjoining-land to make the 27 acres as in the deed of said George BL Smith to Jasper M. Smith. For which Armstrong is to pay $500.00 & I am to make him a gened warranty Deed for the-coal with the right to mine and remove the coal free of damage under the surface, and to air and drainage but he is not. to have right of way or roads on the top or surface of the land on which to remove the coal. E. Lodge Ross.”
Upon the memorandum above quoted, the 'plaintiff demanded, and the court decreed to him, all the coal in the tract of land, which consists of two or more veins, and, in addition thereto, three and 88-100 acres out of the, upper or Pittsburg vein of coal in the adjoining lands of George H. Smith, so as to make 27 acres of the Pittsburg vein, it having been ascertained by survey that there were only 23 12-100 acres of that vein in the 38 % acre tract. At the date of the
The defendant’s contention is that the plaintiff is entitled, under the contract, to have a conveyance of 27 acres of the Pittsburg vein, and no part of any other coal in the 38 % acre tract. He insists that, in construing the contract, the court-should take into consideration the situation .of the parties, the circumstances surrounding them, and the knowledge they had, respecting coal in the land, at the time the contract was made.
Standing upon the strict letter of the written contract, reciting the sale of the coal in the land, bought by the vendor under the decree, the plaintiff denies the admissibility of any parol evidence and insists that an interpretation of the contract, in accordance with the view of the defendant, in the light of the parol evidence adduced, would work a violation of the rule of law which forbids the introduction of parol evidence to contradict, vary, add to or alter the terms of a written instrument.
In taking this position, counsel for the appellee assume, for this contract, the solemnity of a deed, and would apply to it a technical rule of construction peculiar to deeds, namely, that a grantor cannot, by a subsequent clause in his deed, destroy or nullify a grant made by him in a preceding clause thereof, and that intention disclosed by earlier clauses in a deed will control that revealed by later ones. Dev. Deeds, section 838. Under it, the stipulation, “I sell to A. Armstrong .the coal in the Barnes & Smith land bought by me under decree of last Court,” might not be narrowed by the second paragraph of the memorandum, stating the area of the coal and referring to the Smith deed for description thereof, but we are not called upon to decide the question, for t.wo reasons; First, the rule invoked has been very much impaired, if not abolished by decisions of this Court and the great weight of modern authority. Secondly, the rule, if operative in all its.pristine vigor and strength, would not be applicable in the construction of this mere executory contract of sale.
“It is an old rule that, in the construction of deeds, the
No legal title has passed by this contract. It is a mere agreement to convey, for the enforcement of which the ap-pellee has called upon a court of equity. Such court will enforce it only in accordance with the true intent and meaning of the parties thereto. Their contract has not yet progressed to that condition which would place it within certain technical rules applicable to deeds and similar instruments, passing title, which have for their foundation reasons of public policy, designed to give stability to titles, and are not applicable to contracts which remain in deri. This distinction is recognized by decisions authoritative in this Court. Newman v. Kay, 57 W. Va. 98, 117; Thompson v. Jackson, 3 Rand. 504. See also Sugden on Vendors, chapter 8, section 5, page 491, where additional decisions are referred to.
It may be asserted, without citation of any authority for the proposition, that the admissibility of parol evidence is dependent upon whether the contract - is ambiguous. It is necessary, therefore, to determine whether this contract is
By these references the decree and deed are made part of the memorandum; The manner in which that deed deals with the tract of land and the coal is peculiar. In one paragraph it conveys the tract of land, without exception or reservation, and thereby necessarity conveys all the coal under it. It then conveys, separately and distinctly, 27 acres-of coal, described as lying partly under the tract of land. For some reason, it described, if it did not convey, the land and the coal as separate and distinct things, although part of the coal was included in the land, and so much of it as was in the tract of land need not have been conveyed separately, if, indeed, upon the true interpretation of the deed, it was. If George H. Smith had conveyed the 38 H acre tract of land, and then, after reciting it to be the intention that the grantee should have 27 acres of coal, in connection with the.land, and the existence of a doubt as to whether the land contained so-many acres of coal, had granted, conditionally, out of his adjacent lands, enough coal to make good a deficiency, if there should- be any, the effect would have been practically the same, unless there is significance in the separate treatment-of the coal and the land. But the question to be solved here is one of intention expressed in the contract, not construction of the deed. Why did the parties to the deed adopt such a peculiar description of its subject matter, and attempt to make a double conveyance of part thereof? They attempted to treat the coal and the land as two distinct subjects, although the coal was part of the land and could have passed by the conveyance thereof. Moreover, the area of the land was greater than the area of coal, the quantity whereof was warranted, and yet the parties assumed the probability of a.
That thing, whatever it is, was sold by Ross to Armstrong,. Its description in the contract, aided by the deed referred to,, is reasonably certain. It is the coal conveyed and purchased eo nomine, the known and described coal, not necessarily all the coal in the 38^ acre tract. This is the construction of the contract on its face — from ' the terms used in it. It remains only to find the subject thereof, the thing which answers the description, a step necessary in the application of every deed and contract, however definite and certain in its terms, and in the process of which parol evidence is always-admissible. From this conclusion, it results 'that the contract is not ambiguous on its face.
But, in attempting to apply the contract to its subject matter, it is found, tliat there are two similar, but not, in all respects, like, veins of coal, one of which fits the description exactly, while the other does not. Of the latter, the parties-had no knowledge at the time of the making of the contract. It is not uncertain in quantity. It exceeds the area mentioned in the contract. Its location is such that it touches-the boundaries of all the lands adjoining the 38 % acre tract. If, by reason of indefiniteness, in the descriptive terms-of the contract, it were doubtful which of the two veins of coal was intended, what is known as a latent ambiguity would have been developed, by their discovery; and paroL evidence, showing the situation of the parties, the surrounding circumstances, their knowledge and conduct, would be-admissible, as a means of resolving the doubt. But the aid.
That the construction of a contract in which there is a latent ambiguity, by the aid of parol evidence, is tantamount to the reading into it of terms which the parties intended should be a part of it, but failed to express, is revealed by a little attention to the decisions in which this operation has been performed. It happened, in Simpson v. Dix, 131 Mass. 179, that the name of the grantee was Daniel Eastman, and that there were two persons of that name, resident in the same town, father and son; and the question, to be determined by the aid of parol evidence, was which of the two men was intended. As the deed did not add the word “Junior” nor the word “Senior” to the name of the grantee, it was impossible to determine that question from its face. Had it been discovered by parol evidence, that the son was intended, the deed would have operated as if it had described the grantee as Daniel Eastman, Junior. This would have been the equivalent of reading into it the
But to malve the matter conclusive, if it cannot be said under the authorities that this contract is free from ambiguity, both patent and latent, enough has been said to show that its terms do not, with certainty, import a grant of both veins of coal. Hence, parol evidence would be admissible to show which vein was intended, if it be certain, from the face of the contract, as we think it is, that only one was intended; and also, to show that but one was intended, if the contract does not, on its face, reveal that, for the terms used do not certainly import that all the coal in the land -was intended. Parol evidence is admissible to explain patent, as well as latent, ambiguities. Crislip v. Cain, 19 W. Va. 438; Winton v. McCraw, 58 W. Va. 98; Hansford v. Coal Co., 22 W. Va. 70.
Treating the contract as a mere option, counsel for the appellant say, upon the authority of Dyer v. Duffy, 39 W. Va. 148, and Weaver v. Burr, 31 W. Va. 736, failure, on the part of the appellee to accept performance as offered by the appellants, excuses and releases the latter from performance. As it is a contract of sale and not a mere offer to sell, this position is untenable.
Again it is said, the parol evidence shows the parties were
Lastly, a claim to the right of rescission is founded upon, the refusal of the appellee to accept performance as offered by the appellant, the interpretation of the latter having been the correct one and his offer an expression of willingness to perform to the extent of his duty in the premises. Since the refusal was not absolute, the rule invoked does not-apply. To work a release, a refusal to perform “ must be a distinct and unequivocal absolute refusal to perform the promise, and must be treated and acted upon as such by the party to whom the promise was made. ” Swiger v. Hayman, 56 W. Va. 123, 126; Smoot v. United States, 15 Wall. 36; Dingley v. Oliver, 117 U. S. 490. If this were not the law, it would be a dangerous thing to stand upon a controverted construction of a contract. Every man would act at his peril in such cases, and be subjected to the alternative of acquiescing in the interpretation adopted by his opponent, or putting to hazard his entire interest in the contract.The courts have never imposed terms so harsh or burdens of such weight. It would amount to a virtual denial of the right to insist upon an honest, but erroneous, interpretation.
As, tested by the principles and conclusions herein stated, the decree appealed from is erroneous, it will be reversed, the appellee here adjudged and decreed to be entitled only to a conveyance of twenty-seven acres of the Pittsburg vein of coal, according to the survey made in the cause, of which 23 Í2-100 acres lies in the 3824 acre tract of land and 3 88-100 acres in the adjacent Geo. H. Smith tract, and the cause remanded for further proceedings according to the, principles, herein stated and further according to the rules and principles governing courts of equity.
Reversed. Rema/nded.