Bradley v. Washington, Alexandria, & Georgetown Steam Packet Co.Bradley v. Washington, Alexandria, & Georgetown Steam Packet Co.
Lead Opinion
delivered the opinion of the Court.—
This case is brought before us by a writ of error to a judgment of the Circuit Court of the- District of Columbia, for the county of Washington.
It was an action of assumpsit, brought by the defendants in error, against the plaintiff in error, to recover a sum claimed for the hire of the steamboat Franklin.
The claim was founded upon a written contract, concluded between the parties, by the following correspondenceOn the 19th of November, 1831, the plaintiff" in error wrote to the defendants in error, a note, of which the following is a copy: “ I agree to hire the steamboat Franklin until the Sydney is placed on the route, to commence to-morrow, 20th instant, at ($35) thirty-five dollars per day, clear of all expenses other than the wages .of Captain Nevitt. W. A. Bradley.” ;
To this note, W. Gunton, as president of the company, replied on the same day, in the following words: “ On the part of the Washington, Alexandria, and Georgetown Steam Packet Company, I agree to the terms Offered by William A. Bradley, Esq., for the
Upon the trial qf the cause, on issue joined, upon the plea of non assumpsit, a .bill of exceptions was taken by the defendant; from which if appears that the plaintiffs in the Court below, having given in evidence the correspondence already stated, further gave in evidence, a note, signed by William A. Bradley, dated December the 5th, 1831, addressed to Pishey Thompson, requesting him to advise the. president' and directors of the Steam Packet Company, that the navigation of the Potomac being closed by ice, they had that day commenced carrying the mail by land, under their winter arrangement,' and had, therefore, no further occasion for the steamboat Fr'anMin, which Was then in Alexandria, in charge of Captain Nevitt; and.offering to pay the balance due.for the use of the Franklin, on the presentationof a bill, and receipt therefor; and also a letter from W. Gunton, addressed to Wm. A. Bradley, dated the. 6th December, 1831, ip which, after stating that the letter of the fifth, from Bradley to Thompson, had been submitted to the board of directors of the company., he informed him, that the board could not admit his right to terminate his agreement, on the grounds which he had stated in his note to_Thompson; and that they regarded it as being still in full force, and the boat as being in his. charge. The plaintiff also proved, that the steamboat Sydney was not placed on the route until thq.7.th of February, 1832; that the Sydney belonged to the defendant, and that she was not finished so. as to be al to start from Baltimore, until the 25th of January. And thereupon, the plaintiffs claimed the hire of the steamboat Franklin from the 2.6th of November, 1831, to the 6th of February, 1832, seventy-nine days, at thirty-five dollars per day; allowing, credit for three hundred and fifty dollars, paid by the defendant, and leaving a balance of $2,415.
It appears from the bill of exceptions, that after'the plaintiff had. closed his evidence,- the defendant, amongst other things, offered to prove, that he for several, years had been, and then was, contractor for the transportation of the mail, from Washington to Fredericksburg ; that the customary route of said mail was by steamboat from Washington to the Potomac creek, thence by land to Fredericksburg, and that passengers ■ were also transported on that route; that he kept an establishment of horses and stages, for the transportation of the said" mail all the way by land from Washington to Fredericksburg, at seasons when the navigation of steamboats was stopped by ice; and had been obliged for a considerable portion of every winter, during the time he had been so employed in the transportation of the mail, to use his said stages and horses, for the transportation of the mail, all the way by land to Fredericksburg, in the mean time.laying up his steamboat; that just before the daté of the contract, the defendant’s own steamboat, usually
• The Court, refused to permit the evidence thus offered by the defendant to.go-to the jury. And-then, on the motion of the plaintiffs, instructed, the jury, that if they believed from ,the evidence, that the defendant wrote to the plaintiffs the paper of the 19th November, 1831, and that the plaintiff accepted the offer, by the same date, and that plaintiffs arid' defendant respectively wrote- to each other the papers bearing date the 5th and 6thDecember,1831,and that the steamboat Sydney did in fact first- arrive in the river Potomac on the 6th February, 1832, and was placed on the route to Potomac creek, on the 7th of February, 1832, that'then the' plaintiffs were erititled to recover, under the contract so proved, at the rate of thirty-five dollars per diem, from the 20th of November, 1831, to the 6th.of February, 1832, both inclusive. ■
The questions then arising upon this record, are: first, whether the Court erred in refusing to permit the evidence offered by thg defendant to go to the jury ? And, secondly, whether they erréd in giving the instruction to the jury which they did give, at .the instance of the plaintiffs ?
Amongst these rules, a leading one in relation to written contracts, to which class the one in question belongs, is this: That extrinsic evidence is not admissible to. explain a patent ambiguity; that is,.one apparent on the face of the instrument: but that it is admissible to explain á latent ambiguity; that is, one not apparent on the face of the instrument, but one arising from extrinsic evidence ; for this is but to remove the ambiguity by the same kind of . evidence as that by -which- it is created. The rule thus stated seems to be in itself quite plain and intelligible, and yet much difficulty has arisen in its application. The illustration most usually given of the operation of this rule in the admission of extrinsic evidence, is that of a description of a devisee, or of an estate, in a will, where it turns out that there are two persons, or two estates, of the same .ñame and description.. These, however, are put, not as measuring the extent of the rule, but as exemplifying its application;.- and all. other cases within the scope of the principle are, in like manner, open to explanation, by the same kind of evidence.
Accordipgly.it is. laid down, in'a very accurate writer on the subject of evidence, 3 Starkie, 1021, that extrinsic parol evidence is admissible to give effect to’a written instrument, by applying it to its proper subject matter.
Let us examine some of the many cases which have "been decided upon the subject of the. admissibility of this evidence, in relation to written instruments.
Ih the first- placé, wherever there is. a doubt as to the extent of the subject devised by will, or demised, or sold, it is matter of extrinsic evidence to show what is included under the description, as .parcel of it. Accordingly, in 1 Term Rep. 701, Buller, Judge, said, whether parcel or not, of the thing demised; is always matter of evidence. So where a grantor in a/deed described the premises, as the farm on which he then dwelt, this was held to be a latent ambiguity, which might be explained by evidence aliunde; and evi-, dence was admitted, that a particular piece of land, claimed under the. deed, was. at the time of the grant in a state of nature, unenclosed, and separate from the rest of the farm, and that the grantor remained in possession, and occupied it as his own till his death— to show that it was not within the grant . 4 Dav’s Rep. 265.
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So where a.charter party stipulated that a freighter should pay a certain- sum per pound, &c., British weight;' it was held, that as the word weight had two meanings, gross and neat, this was such a latent ambiguity as to warrant the introduction of parol testimony. 1 Nott and M'Cord, 45.
In the case of Peish vs. Dickson, 1 Mason’s Rep. 11, it is said by the judge, that if by a written contract, a party were .to assign his freight in a particular ship, it seemed to him that parol evidence bright be admitted of the circumstances under which the contract was made, to ascertain whether it referred to goods on board the ship, or an interest iri the earnings of the ship; or'in other words, to show in what sense the parties intended to use the term.
Nor is this principle at ah confined to mercantile contracts-; for in Robertson vs. French, 4 East, 130, Lord Ellenborough, speaking on this subject, said, that the same rule which applied to all other instruments, applied also to a policy of insurance. The admission of this -kirid of proof has been carried to. a great extent top, with a view to á correct construction of wills. In the case of Shelton’s executors vs. Shelton,
We will close this reference to cases with that of the Mechanic’s Bank vs. The Bank of Columbia,
* Without - attempting To do-what" others have said that they were unable to accomplish; that is, to reconcile all'the decisions on the-subject; we think -that we may lay down this principle ás the just result. That in giving effect to' a written contract, by applying it to its proper subject matter, extrinsic evidence may be admitted to prove the circumstances under which it was made; whenever, without the aid of such evidence, such application could not be made in the particular case. . ...
With this, principle in view, we proceed to inquire whether the evidence offered by the defendant, in this case, ought to have been received by the Court.
Now had the evidence been received; it would have disclosed the following state of facts. - That the route mentioned, in the-contract, was" oiie on which the plaintiff in error transported passengers,' and also the mail :• that the steamboat Sydney, mentioned in the contract, wás designed to perform this service; and that the Franklin •was wanted for the same purpose': that the Sydney was then at Baltimore, for the purpose of being, fitted with her engine and equipments: that although the transportation of passengers and the mail was carried on, by the plaintiff in error., in a steamboat, whilst the river, was open; yet, when the river was closed, by ice, so that navi-* gation was obstructed, the plaintiff in error then transported passengers and the -mair all- the way over land to Fredericksburg: that when the river was thus obstructed, the plaintiff in error could not, and did not, use a steamboat: and that all these facts were known to the, defendants in error.
We, think that this evidence ought to have been received, because it would have tended to show, by the circumstances under which the contract was made, what was the intention of the parties; and, in the language of the rule which we have laid down, that the contract, without its -aid, could not be applied to its proper subject matter.
The terms, used in the written- contract are, for the use of the
-This principle is illustrated by the cas,es which we have before referred to. Take, for example, the case cited from
So we have seen,, in the case from
We could suggest many eases which we think would illustrate this principle, and prove, that from the necessity of the case, and consistently with the rules of law, the circumstances under which a. written contract is made, must be open to proof by extrinsic evidence, in order to ascertain the intention of the parties, and thus correctly interpret it. Suppose that during the late war, .a person had been engaged, by contract, to transport munitions of war' to the army; that, for that purpose, he had hired a steamboat of another, and had signed a written agreement, by which he engaged to take good' care of the boat; suppose that, whilst he was engaged in this transportation, the boat had been destroyed by the enemy, as it might rightfully have been by reason of the hostile character impressed upon it; that, thereupon, a suit, had been brought by the person who let it to hire, upon the stipulation to take good care of the boat. Can it be doubted, that it would have been competent., for the defendant to have proven, that he was a contractor with the government to transport munitions of war; that he had hired the boat for that express purpose; and that these facts were known to the other party; so as to show the intention and understanding of the parties as to. the kind of danger to which the boat .woiild unavoidably be exposed, -in performing the very service for which it was hired. . .
We-will state only.one case more, founded on the suggestion of Mr. Chief Justice Ellsworth, in a note to
All the cases which we have cited, in which extrinsic evidence has been received, and those which wé have supposed-, in which we think that it would be' admissible, proceed on one principle only, and-can only be justified upon that principle. And that is this: that the rule which admits extrinsic evidence, for the purpose Of applying a written contract to its proper subject matter, extends beyond the mete designation of the thing on which the contract operates; and embraces within its scope the circumstances Under which the contract concerning that thing was made; when, without the aid of su6h extrinsic evidence, such application of the written contract to its proper, subject mattér could not be made. Hence' Mr. Starkie, in his third volume on evidence, 1021, after having laid down the principle, that extrinsic parol evidence is admissible to give effect to á written instrument,By applying it to its proper subject matter; adds, “ and also as ancillary to the latter object, (that, is, the application to its proper subject matter,) for the purpose, in some in- . stances, of explaining expressions used in a peculiar sense, and of annexing customary incidents,” &c. , .
Let us take a case under each branch of this rule; and by this exemplification, we shall more clearly see the operation of the rule itself, , and the very decided bearing which it has upon this case. Theta as to the first branch, as to parol evidence for the purpose of explaining expressions used, in a peculiar sense. Let Us take the case before cited; where the question was as to the legal 'effect, of a written contract; to receive a stipulated sum in lieu of privilege and primage.: in other words, what was the meaning of these terms? Parol evidence was received to show the sense in which the mercantile part of the nation used the w'drd privilege; and why? - because, the real question was not what was the meaning of. the word privilege in general) if that had been the question, it would have been a patent ambiguity, and parol evidence would have been dearly inadmissible: but the real question was, what was the meaning of the word privilege, as used in that contract ; it being , a word which had acquired in: the mercantile world. a peculiar meaning, that meaning must be inquired into, by parol evidence, to get at the intention of; the. parties, as it-was a mercantile contract. Thus, it will be seen, that it was necessary to go into the mercantile sense of the word, that being the sense in which it was used in the case stated; in order to apply the written contract to its proper subject matter.. Accordingly, Mr. Starkie, in his book on evidence, 1033, States that to be the reason why evidence is admissible to prove the special and peculiar sense in which a word is understood.
And so in the case before us, upon the same principle, the subject matter of the contract was not merely the steamboat Franklin; but the-steamboat Franklin under the circumstances under which .it was hired.' ,.The parol evidence then,- in this case, was admissible; because without it§ aid, the written contract could not he applied to its proper subjeet matter: and, therefore, it was proper to prove the circumstances attending the transaction. . Having thus stated our opinion to :be,- that evidence ought to have been received to prove the facts stated in the hill of exceptions on the part of the defendants ;..it follows as a conseqúence, that the Court below erred, in giving to the jury the instruction which they did give; at the instance of the plaintiffs in the Circuit Court.
We think, therefore; that the judgment is erroneous, and must be reversed with costs. And a venire facias de- novo is. awarded; with instructions, that upon the next trial, the Court shall receive- parol evidence, to prove the facts stated in the bill of exceptions, to have been offered to be proved by.the defendant, at the former trial: except the fact of the communication made to the plaintiff, by the defendant, or his agent, before the time of making the contract, that the defendant intended to keep the steamboat Franklin in use under the contract, so long as the navigation remained open, and no longer: and with the furthér instruction to the Court, not to give the jury the instruction stated in the exception to have been given at the former trial.
Concurrence Opinion
I have not been able to concur in the opinion of a majority'of the Court in this case. .1 admit, in the fullest extent, the rule, that párol evidencé.js admissible to explain a latent ambiguity. - - But I cannot percéive any ambiguity in the contract in this case., require ing the application of that rulé. The contract is dated the 19 th of November,. 1831, and was for the hire of the steamboat Franklin, to be placed on the route from Washington to Potomac creek, until the Sydney should be placed on the route; and to commence on the day after the' date of the contract, at the. rate of thirty-five dollars per day, clear of all expenses, other than the wages of the captain, which were to be paid by the company. The only question in the case is, as to the. admissibility of the parol-evidence offered on the trial. I think it was properly rejected-by . 'the Court. "Whatever related to any conversations, or negotiations on the sub-, ject, previous to the consummation of the contract, were merged iff the final conclusion of the' contract; according to- the well-settled rule of law. And whatever passed between the parties, after .the contract was concluded, was also'inadmissible; because it tended to vary the contract, and substitute another for that which-had been concluded between them. The contract was for the use of the Franklin, without any specified limitations as to time. It was to continue until the Sydney was placed on the route. The Sydney wasowned-by Mr. Bradley, and Was at the timé the contract was entered into, at Baltimore, for the purpose of being fitted with her' engine,'and other equipments necessary to completé her. The time, therefore, for which the Franklin was to be employed, depended entirely upon the Sydney’s being placed upon thé route. And. this was at the election of Mr. Bradley: the boat Was his, and the repairs or equipments were under his directions, and could not be hastened by the owners of the Franklin; and .they had it not in their power, to put an end to the contract, but were bound to keep their boat ready for the use of Mr. Bradley, until the Sydney was placed on the route. It is not at all probable from the date of the contract, about the middle-of November, that either party anticipated the freezing of the river so .early as it did; or some provision would have been made in .the contract for such event. The loss resulting from. such an unexpected and temporary obstruction by the ice, ought to fall on the party who is chargeable with the delay, in placing the Sydney on the route — and that was Mr. Bradley. The boat was his;' and the placing her on the route was at his election, and of .'course at his risk.
The contract given in evidence to sustain the action below is free from any ambiguity on its face'; and the question is, can oral evidence be resorted to — first, to raise an ambiguity, by showing the. objects of, and circumstances that lead to, the contract; and second, to explain the ambiguity created by the oral evidence ? .
Nór caff oral evidence be called in to explain .the ambiguity inferred from the circumstances and unexpressed intentions,, in refer-' ence to which the parties are supposed to have contracted. Their entire meaning is taken to be in the Writing. 3 Stark. Evid. 999, 1000.
By this means new and independent stipulations are sought, as I apprehend, to be added, dehors the written agreement, varying its terms plainly expressed; so that if may be made to operate different ways, according to the explanatory evidence. This case well-illustrates- the effect of the'doctrine. . Had the ice not closed the'fiver, then'Mr. Bradley would have had no. excuse: this is matter of proof. Had the Sydney not been repaired, then he would have had no excuse: This is also matter of proof. Had the steamboat epmpany established that they in previous winters took their boat, the Fránldin, out of the Potomac, after the ice formed in .this-river; and run her in other waters, not subject to ice; and that Mr. Bradley prevented them from taking the usual .course until the boat was. frozen up in the river; then all equity and justice would have been on the side of the plaintiffs below. . Hence ;thé rights of the parties - on another trial will not depend on the written contract; but it will operate according to the oral proof, and the conditions thus inserted into it. It is clear, the oral evidénce, and not the writing, must produce the definite effect;
I hold, nothirig ean be added to a written agreement^ unless there be a cleat subsequent, independent agreement, varying the former; but not where it is matter passing at the same time with the written agreement. -
Truly, where the terms of the written' instrument aré clear, oral evidence is used to point the application to this or that subject matter, It acts in aid of the written ffistruinent, to give it -the intended application; not to add to its terms, by inserting new conditions and limitations in- the contemplation of the parties, and to be inferred from extrinsic circumstances, existing- when the agreement was. made. . '
To control its construction by oral proof of the objects of .the contracting parties, and the purposes of the contract,.would lead to. the dangerous result of construing every writing not by its. face, not by the language employed; but by matters extrinsic, variant in each case, as human' testimony should make it: the construction, of necessity, to be determined by the jury, and not by the Court,-whose usual province it is. to construe written agreements.
The controlling extrinsic circumstance invoked as an element to construe the contract before the Court, is, that the boat Franklin was hired to carry the mail; and that so soon as the ice prevented her from running, it must be inferred the object of Mr. Bradley (at the daté of the contract) was, to surrender the boat, and carry the mail
. If Mr. Bradley had the power to. elect according to a reserved indention,and put.an end to the agreement; so had the other side, on a similar reservation, not expressed, but to be inferred from circumstances existing, at the time, and in reference to which the parties are supposed!» have contracted.
I think'no oral proof could be let in to raise an ambiguity, nor to explain it-when raised; and that in this case, as in-all others, the parties must abide by their agreement, fairly made, and plainly expressed.
Dissenting Opinion
I had not intended to express any dissent from the opinion of the Court in this case.' But- as my silence might now, under the circumstances, lead to the conclusion that I concurred in that opinion, I wish to state that I concur in the opinions delivered by.my Brothers, Catron and Thompson, and for the reasons given by them.
This cause came on to be heard on the transcript of the record .from the Circuit Court of the United States for the District of Columbia, holden in and for the county of Washington, and was argued h sounsel: •- On consideration whereof it is ordered and adjudged by this Court, that the judgment of the said Circuit Court in this cause be,and the same is hereby,reversed, with costs; and that this cause be, and the! same is hereby, remanded to the said Circuit Court, with directions to award a venire facias de novo;