14 Neb. 9 | Neb. | 1883
The question in this case arises upon certain instructions given and refused, and is most fully presented by the instruction numbered 2, given at the request of the plaintiff, in the following words: “The fact that the houses in question may not have been on the premises or been fit for occupancy at the time when the bond was given, should the jury find such to be the fact, does not prevent the
It appears from the testimony that at the time of the execution of the undertaking, the premises consisted of one and six or seven-tenths acres of agricultural land in an enclosed field of far greater extent, without improvements except a root-house of merely nominal value. That the said premises were then occupied for gardening purposes by lessees, not under the plaintiff in error, but under a grantee in the second degree of the title thereto, conveyed by the plaintiff in error some years before the giving of the undertaking. The houses referred to by the court, in its instructions, were not in existence at the time of the giving of the undertaking, but were placed on the
In the brief time at our command we have not been able to find a single adjudicated case which, to our mind, covers the point involved in this case. It is no doubt well settled, independent of any legislation, in the nature of occupying claimants acts, that in an action for mesne profits against a bona fide purchaser, he will be allowed, against the plaintiff, in mitigation of damages, the value of permanent improvements made in good faith to the extent of the rents and profits claimed by the plaintiff. But the plaintiff in error does not bring himself within the benefit of that rule, nor could he, for the reason that the improvements were not made by him but by another person, in whose shoes he is made to stand by force of the contract of the undertaking. While the undertaking estops him to deny the possession of the premises, yet as he was not in possession, in point of fact, he could not avail himself of the benefit of these improvements.
While this action is one in the nature of an action for mesne profits, it is not that. It is an action for the breach of a special contract. The fact that the contract is a statutory one, and somewhat compulsory, does not change its nature as a contract, nor the rules for ascertaining the rights of the parties thereto upon its breach. It is to be construed by the same rules as other written contracts between parties. If words are used in a doubtful sense as to their meaning or application, courts should, if possible, give them the meaning and application intended and understood by the parties themselves at the time of making the contract.
The supreme court of Vermont, by Judge Redeield, in
To the same effect is the following: “Every treaty” says Vattel, “should be interpreted as the parties understood it when the act was prepared and accepted.” Note to Kent’s Commentaries, vol. 2, p. 557/
To apply this rule to the case at bar: The subject-matter was the one and six or seven-tenths acres of land, the possession of which had been adjudged to the defendant in error; the object of the undertaking was to delay the carrying of said judgment into effect until the same could be reconsidered in the appellate court, the language — “ would pay * * * the value of the use and occupation of the property.”
What property did the plaintiff in error have a right to suppose the other party would construe this language to mean, or what meaning or construction was the defendant in error fairly justified in giving to it? Certainly none other than the one and six or seven-tenths acres of land, the block of ground which had been and still was in litigation between the parties. This is as the parties understood it when the act was prepared, and so the treaty should be interpreted.
We therefore reach the conclusion that the district court erred in giving the instruction No. 2 of the plaintiff’s requests, and in refusing to give the requests of the defendant containing the opposite principle as the law of the case.
The judgment of the district court is reversed, and the cause remanded for further proceedings in accordance with law.
Reversed and remanded.