Bellows v. Denison

9 N.H. 293 | Superior Court of New Hampshire | 1838

Upham, J.

We have had considerable difficulty in giving a construction to the contract in this case, so as to make it an intelligible instrument throughout, and consistent in all its parts.

There is a portion of the contract, which is first stated, that is perfectly clear and explicit, apart from the consideration of subsequent conditions, which may seem contradictory ; and the question arises, whether those conditions form the basis of the contract and modify other portions of it, or whether the terms of the contract, as at first stated, are to govern.

Such portions of the instrument as are of a doubtful character, or may admit of a double construction, should be conformed to those portions of the contract that are clear and explicit; and in connection with this rule such construction should be given as will best give a meaning to the whole terms of the contract, if that can be done. In addition to this, if the question be doubtful, as the property was origin- ' ally the plaintiff’s, it must be holden to remain so, until shown, by a balance of testimony at least, to have been alienated by him.

In applying these principles to the contract in question, we are of opinion that the construction contended for by the plaintiff is the only construction that will affix a meaning to all the terms of the contract.

The contract is perfectly clear and distinct to this extent : “Received of Charles Bellows one hundred sheep, twenty- ‘ four of which are wethers, seventy-six ewes, and twenty- ‘ six lambs ; weighing in all 8550 lbs., to keep well one ‘ year, and return in good order.” Then follows a portion of the contract which would seem to be inconsistent with a return of the same sheep, viz.—Mann, is to keep the sheep well one year, and return them in good order, “ all to be of good age.”

If the same sheep are to be returned, why is any provision made as to their being of good age ? And yet, on the other hand, if the sheep were sold, why should the plaintiff insist on the sheep being kept well ? It would seem as though the plaintiff’ might permit Mann, after buying the sheep, to keep them as he pleased. It would be a matter of perfect indifference to him ; and why was Mann required to keep the sheep one year, and return them, if the moment he took them he had a right to sell them ? These questions, it seems to us, are difficult to answer.

Bat there are other portions of the contract to be considered. A clause is inserted as to the wool. Mann is “to give and deliver to said Bellows 126 lbs. of good washed wool, as good as the flock shall average, to be delivered in the month of June nextbut this clause furnishes no means of construction as to the rest of the contract. The contract then goes on; “ said sheep to be as good as those taken at this time, and the same weight of sheep. Also, one large buck, to be returned.”

The contract requires the return of the sheep, also of the buck ; but how are the sheep to be returned ? Why, said sheep are to be as good as those taken at this time.” This provision, therefore, clearly shows that, on some contingency, the same sheep are not to be returned, but others, so as to make an amount equal in weight 11 as good as those taken,” and “ of good age.”

The design of the contract seems to have been to provide for the return of the same sheep, as far as might be ; and in case of any loss or accident, that the bailee should make up this loss by other sheep equal in condition, age, and weight. By such understanding of the contract all parts of it can be reconciled. It places the risk of loss of the sheep upon the bailee ; and this would tend to insure greater diligence, and care in the charge of the flock, which would be a desirable object to effect ; and the bailee might perhaps well afford to incur this risk, as it would seem, from the terms of the contract, that the increase of the flock was to belong to him.

Such we conceive to be the most natural construction of the contract. On this principle the sheep actually taken should be returned, with such others in weight, and of equal quality as would, in case of loss, make the amount taken.

The property in the sheep delivered did not therefore vest in Mann, and the defendant by the attachment of them as Mann’s property has rendered himself liable to the plaintiff in the present action for the value of the sheep delivered to Mann by the plaintiff.

The contract for the delivery of a certain quantity of washed wool by Mann, as good as should be averaged from the flock, depends on another principle, and does not limit Mann to a return of the wool sheared from the flock. The fleeces sheared from the flock would be his, and the return of a certain weight of wool of equal quality would rest merely in contract,—the property in the wool when sheared not being in the plaintiff. The defendant is, therefore, not liable for this portion of the plaintiff’s claim, but merely for the value of the plaintiffs sheep which have come to his hands.

Judgment for the plaintiff.