Harten v. Loffler

29 App. D.C. 490 | D.C. | 1907

Mr. Justice Mo Comas

delivered the opinion of the Court:

The first, sixth, and eighth assignments of error raise the question of the admissibility of the parol testimony we have stated, which tended to show in what sense the word “about” was used in the agreement, and to what property the agreement applied.

The writing in controversy was drawn by an unskilled person. Uncertainty arose concerning the property to which it applied. The court below admitted this parol evidence of the surrounding circumstances and the negotiations preceding and accompanying the execution of the paper, to ascertain and make plain the intent of the parties and the meaning of their contract so far as it was uncertain, and especially to determine the subject-matter of the contract, particularly the meaning of the word “about” in its collocation.

“Contracts, where their meaning is not clear, are to be construed in the light of the circumstances surrounding the parties when they were made, and the practical interpretation which they, by their conduct, have given to the provisions in controversy.” Lowber v. Bangs, 2 Wall. 728, 737, 17 L. ed. 768, 769.

The courts are disposed to uphold a contract drawn hy a person unskilled in the use of legal terms, when in the contract there appears a reasonably sufficient description of its subject-matter. When all the circumstances of ownership, possession, and situation of the parties, their relation to each other and to the property, when the negotiations took place, and when the writing was made, are disclosed, if the meaning and application of the writing, read in the light of those circumstances, is certain and plain, the parties will be bound by it as a sufficient written contract. If a party who enters into an agreement in fact owns a parcel of land answering the description, and only one such, that must be regarded as the one to which the description refers; and if the language used includes the whole parcel, and though some chattels on the property be excluded, and no part of the parcel of real estate be excepted, and if the negotiations plainly show that, at the time the writing was made, all the parties to the negotiations treated of the whole parcel and nothing less, and nothing other than the whole parcel, the extrinsic evidence which makes certain the description of the property included in the sale is admissible to give effect to what was intended, but what was not clearly expressed. See Mead v. Parker, 115 Mass. 415, 15 Am. Rep. 110; Slater v. Smith, 117 Mass. 98; Farmer v. Batts, 83 N. C. 392.

Extrinsic evidence is not admissible to explain a patent ambiguity, that is, one apparent on the face of the instrument, but is admissible to explain a 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. Extrinsic parol evidence is admissible to give effect to a written instrument by applying it to its proper subject-matter. As Chief Justice Alvey has said: “It is a well-settled principle in the law of evidence that parol evidence may be received in aid of written evidence, in order either to establish a particular document, or to apply it to its proper subject-matter, or to explain it, if its terms be of doubtful import; or to rebut some presumption which affects it. Light is generally thrown upon these questions by proof of the circumstances surrounding the parties and with reference to which the written document was made.” Whelan v. McCullough, 4 App. D. C. 63; Okie v. Person, 23 App. D. C. 182; Atkinson v. Cummins, 9 How. 479, 486, 13 L. ed. 223, 227. The use of the term “fronting on Brightwood avenue about 60 feet, with a depth of about 200 feet,” when these exact measurements would cut off one seventh of a house and a narrow apex of a triangular lot, while all other terms describing the property to be sold would include the whole dwelling and the whole lot, made the case before us an instance of a latent ambiguity. Thereupon the construction given by the parties themselves, as shown by their acts and admissions, may be proved by parol testimony to solve this latent ambiguity. 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. Bradley v. Washington, A. & G. Steam Packet Co. 13 Pet. 89, 99, 10 L. ed. 72, 11.

It is true, this contract was for the sale of land, but for most purposes the statute of frauds has neither added to nor taken away from the stringency of the rules of the common law in regard to the admission of parol evidence to affect written contracts. Browne, Stat.' Er. sec. 409. Nor was there any variance between the contract offered in evidence and that declared on. Warfield v. Booth, 33 Md. 63. The court below committed no error in admitting the parol testimony involved in the first, sixth, and eighth assignments of error.

The second, third, fourth, and fifth assignments of error relate to the measure of damages, and to evidence concerning damages suffered by the plaintiff by reason of the breach of the contract sued on. The measure of damages, as stated by the court, was the difference between the purchase price and the market value at the time of the contract of sale. The evidence to prove damage, bearing in mind that the contract of purchase included not only the entire real estate, but the expected benefit of the license, the business, and the good will, included evidence of the value of each of these; and in admitting it the court committed no error.

Nor did the court err, as claimed in the seventh assignment of error, in admitting the deed tendered by the appellant in connection with the tender of the purchase money to the appellee. The testimony of Hood, who communicated to Loffler Harten’s desire to sell this business and property, which induced the negotiations between Loffler and Harten, was properly admitted.

And we find no error in the testimony excluded and referred to in the ninth assignment of error. The transactions between the appellant and Brady had no relation to the contract between the parties to this suit. Nor was the proffered evidence and understanding between'the appellant and his wife, that he would reserve a part of the property, an offer of relevant evidence. Nor did the court err in excluding the testimony of the witness Montague. We find no error under this ninth assignment.

An application by the appellant for a writ of error to the Supreme Court of the United States, made May 9, 1907, was allowed, and the writ issued May 10, 1907.

The tenth, eleventh, and twelfth assignments of error relate to the rulings of the court after the close of the testimony. The court did not err in refusing to instruct the jury to return a verdict for the defendant. The second prayer was correctly refused. The question for the jury was not what was the fair cash value of a part of the property, but whether or not the party for $12,000 had made a contract for the sale of the whole property. Nor was the third instruction improperly refused, for it limited the jury, in construing the contract, to the defendant’s intent; and the sixth instruction limited the jury to the plaintiff’s intent in making the contract. Two minds must meet to make a contract. For this reason the court erred in granting the fourth and fifth prayers of the appellant. Without discussing in detail the ninth, tenth, eleventh, fourteenth, and fifteenth instructions asked for by the defendant, suffice it to say, we find no error in their refusal by the court below. Nor did the court err in granting the first, second, third, and fourth instructions on behalf of the plaintiff. In the instructions granted upon both sides and in the oral charge by the court, we think the case was fairly presented to the jury; and the court committed no reversible error.

The judgment of the court below must be affirmed, with costs, and it is so ordered.