129 Ark. 513 | Ark. | 1917
(after stating the facts). Appellants contend that the court erred in permitting the introduction of oral testimony which tended to vary and contradict the terms of the written rental contract executed by the parties, and whether or not the court erred in permitting oral testimony to be introduced is the only question for our decision.
And in Seelig, Receiver, v. Phillips County, 129 Ark. 473, we quoted Barry-Wehmiller Machine Co. v. Thompson, 83 Ark. 283, as follows:
“Antecedent propositions, correspondence and prior writings, as well as oral statements and representations, are deemed to be merged into the written contract which concerns the subject-matter of such antecedent negotiations, when it is free from ambiguity and complete.” And in that case we also quoted from Watkins v. Greer, 52 Ark. 65, as follows: “Where a contract is ambiguous parol evidence is admissible to explain the situation of the parties so that the court may correctly apply the language used to the things described. ’ ’
In another one of our most recent cases, Livingston v. Pugsley, 124 Ark. 432, 436, we said: “While the terms of the contract can not be extended by parol evidence, such evidence may be admitted to show the circumstances under which the contract was executed in order to construe the language thereof. ’ ’
And in Wood v. Kelsey, 90 Ark. 272, we said: “Courts may acquaint themselves with the persons and circumstances that are the subject of the statements in the written agreement, and are entitled to place themselves in the same situation as the parties who made the contract so as to view the circumstances as they viewed them, and so as to judge of the meaning of the words and of the correct application of the language to the things described.”
Now the contract, upon its face, shows that it was with reference to the renting of a certain tract of land for the year 1915, and the contract clearly shows that the parties to it had in contemplation the payment of money rent in the event that the tenant Baker was not hindered on account of the drouth or overflow from making a good crop, for the contract provides: ‘ ‘ Baker is to cultivate the land in a good husbandmanlike manner and the said Goodwins agree that if the said Baker fails to make a good crop on account of drouth in the neighborhood or fails on account of high water in June that the said Good-wins agree to take one-third of the crop that Baker cultivates for their rent.”
In Paepcke-Leicht Lumber Co. v. Talley, 106 Ark. 400, we held: “While the rule is that it is the duty of the trial court to construe a written contract and declare its terms and meaning to the jury, when the contract contains words of latent ambiguity, or when technical terms are used or terms which by custom and usage are used in a sense other than their ordinary meaning, oral testimony is admissible to explain the terms or words used.”
If the parties to the contract contemplated that there should he no cash payment of rent on the land for the year 1915 in the event that there was a drouth or overflow during that year which should cause a failure or partial failure of appellee’s crop, notwithstanding his good husbandry, as seems manifest from certain language of the contract, then the words “in June” are ambiguous. For if these words are given a strict literal interpretation, the appellee would be liable for the cash rent even though an overflow might not occur in the month of June but did occur on the first of July or some succeeding month which resulted in the destruction of appellant’s crop. Therefore, we are convinced that the words “in June” were not used in their narrow literal sense, but that inasmuch as it appears from the testimony that the overflows which sometimes result in disaster to the crops usually came in June that these words were used rather in the sense of designating the overflows rather than in the sense of limiting the time when the overflow should take place. Such being the case, the oral testimony was admissible to show the situation of the parties, the subject-matter of the contract and all the circumstances so as to judge the meaning of their words and to ascertain their real intent in using them, which intent in the last analysis constitutes their contract.
The trial court was correct in adopting this view in its rulings in the admission of testimony and its instructions to the jury. The judgment is therefore affirmed.
