142 Ark. 421 | Ark. | 1920
(after stating the facts). It is sought by the plaintiff to uphold the judgment on the ground that the contract is not ambiguous and that the court properly construed it not to reserve the articles sued for.
On the other hand, it is contended by the defendant that the contract is ambiguous, and that oral testimony was admissible to explain the meaning of the words, “personal effects,” as used in the contract. Ordinarily it is the duty of the court to construe a written contract and declare its meaning to the jury. Where, however, the contract contains words of latent ambiguity, oral testimony is admissible to explain the meaning of such words. Wilkes v. Stacy, 113 Ark. 556.
Tested by this rule, we think the court erred in instructing a verdict for the plaintiff. We do not think that the words, “personal effects,” as a matter of law should be restricted to such tangible property as is worn or carried about the person. In construing the meaning of these words, particular regard must be given to the connection in which they are used. Each case must be construed according to the connection in which the words are used, regard being had to the situation of the parties and the surrounding circumstances.
Mrs. Ellege was conducting a hotel which had twelve rooms which were used in the business. Her husband, her son and herself occupied two rooms downstairs, which were furnished by her for that purpose. She sold her hotel and its furniture to Henderson. When they moved out, she carried with her the furniture in the two rooms occupied by her family. Henderson claimed the fnmiture under the contract of sale. She sold the hotel for $4,000. The first part of the contract deals with that phase of the subject. Then follows this clause: “It is understood and agreed by us that all equipmént and furnishings now in and around said house are to go to Henderson for the consideration of $4,000 as above stated except the own personal effects of said Elleges. In other words, the hotel is to be left fully equipped for business as it now stands.” It will be noted .that the language quoted deals with the disposition of the equipment and furnishings in the hotel. The agreement, in brief, is that all equipment and furnishings now in the hotel are to go to Henderson except the own personal effects of the Elleges.
When the parties in a contract enumerate a particular class and immediately couple with that class the words, “personal effects,” these words must be applied to articles ejusdem generis with those specified in the preceding part of the sentence. The parties weré dealing with a disposition of the equipment and furnishings of the hotel and a fair and reasonable interpretation of the words, “except the own personal effects of said Elleges,” would show that the parties referred to furnishings of the hotel which had been for the personal use of Mrs. Ellege and her family. It can not be said as a matter of law that the parties were referring to articles usually worn on the person when as a matter of fact the sentence deals with the disposition of the furnishings of the hotel and it might be fairly said that the words personal effects as used in this sentence by the parties referred to the furnishings used by Mrs. Ellege; otherwise, why except the personal effects of Mrs. Ellege from the furnishings if they were not of the same class as those mentioned in the first part of the sentence. This view is strengthened when we consider the words following. They are explanatory words and show that the parties meant that only the equipment and furnishings which had been used by Mrs. Ellege in the proper conduct of her hotel business should pass under the sale.
Therefore, we are of the opinion that the contract is ambiguous, and that oral testimony is admissible to explain the meaning of the words used, and that the court should have submitted to the jury to determine in what sense they were used. Paepcke-Leicht Lbr. Co. v. Talley, 106 Ark. 400.
It follows that the court erred in directing a verdict for the plaintiff and in not allowing the explanatory testimony of Mrs. Ellege to go to the jury. On this account the judgment must be reversed and the cause remanded for a new trial.
