37 Wis. 582 | Wis. | 1875
The counsel on both sides agree that this is an action on the instrument set forth in the complaint, and we agree with them. How that accords with some of the positions of the parties in the court below and in this court,' we need not stop to inquire.
The court below, on the prayer of the appellant, charged the jury that the contract is an ex parte contract; in legal effect an offer of the respondent to give the right of way on the terms stated, not binding the appellant or making it liable for violation of its terms. If that be so, it is difficult to understand on what ground the,court below sustained the action or upheld the verdict for the respondent.
Contract, ex vi termini, implies concurrence of parties; and
Very strict lawyers cling to a doubt whether a party ought to be bound by the terms of a deed which he does not execute, even by indenture. Platt Cov., 10-18. But Mr. Platt’s learning compels him to admit that the doctrine is well established in England, that acceptance of an indenture binds the grantee without execution. The doctrine is also accepted in this country. See the well considered case of Finley v. Simpson, 2 Zabr., 311. And the question is not an open one in this court. Vilas v. Dickenson, 13 Wis., 488; Bishop v. Douglass, 25 id., 696; McClellan v. Sanford, 26 id., 595; Lowber v. Connit, 36 id., 176.
A deed poll may run in the third person as well as in the first (Shep. Touch., 51); and an indenture in the first as well as in the third. Oo. Litt., 229 b, 230 a. The only real difference in form is, that an indenture purports to be the deed of both or all parties to it, and a deed poll the deed of the grantor only. So of old an indenture was written in counterparts, one for each party, all correspondingly indented, for the purpose of identification; and a deed poll, in one part only, cut evenly or polled, without indenture. Shep. Touch., 50. And the mechanical process was essential to an indenture; for “ it may be
And it was held that an indenture was the deed of the grantee, though not executed by him, because he accepted it importing to be sealed by him; but that acceptance of a deed poll did not bind him, because it did not import to be sealed by him. Co. Litt., 229 a, 280 b.
There were once meaning and purpose in these distinctions, puerile as some of them now seem; but the names have long survived all useful sense. In our conveyancing, these subtleties are practically obsolete. Our common deed of conveyance is never indented or executed in parts; and is not an indenture, though it so calls itself and imports execution by both parties. It is universally executed and dealt with as a deed poll. And sometimes a deed poll is substituted for it, without question of difference in law, as there is none in fact. And this court has given the same effect, as ought in reason to be given, to acceptance of deeds poll as to acceptance of indentures, without pausing to weigh subtleties of distinction which died long ago out of the practical business of American life. See cases cited supra.
In the case before us, the appellant accepted the instrument and registered it; entered under it, and claims to have complied with its terms. This is, in effect, the appellant’s answer. It would be strange if it could accept the grant, freed from the provisions qualifying the grant; take the estate, without the limitations of the estate; claim under the contract, without being bound by its terms. The appellant took its right cum oncre; and, by accepting the instrument, bound itself as much by the terms of the contract, as if it had sealed it. We say as much bound, without referring to the form of obligation or to the distinction recognized in Bishop v. Douglas..
What would have been the relations of the parties, had the appellant avoided the respondent’s premises, or undertaken to secure the right of way over them under its charter, we need
By the terms of the contract, the appellant toolc the right of way, bound to the respondent that its railroad track should not interfere with or injure the structure which sustains his mill dam, and should not run nearer than seven rods from the east line of his grist mill. Questions are made on the construction of these agreements, which are not free from difficulty.
The respondent’s dam does not appear to be sustained by any other structure. There is a wall which is evidently a part of the dam, and cannot properly be regarded as a structure which sustains it. Presumably it sustains the earth-work, and the earth-work sustains it: both mutual parts of one whole. The terms of the contract would apply equally to each, and properly to neither. All surroundings show that the wall is not the structure intended.
The term “ mill-dam ” implies an artificial structure. Jackson v. Lawrence, 11 Johns., 191. One structure may sustain another: as a pedestal, a pillar; and the pillar, a portico; and the portico, a pediment: ail perhaps, in legal sense, parts of one structure, merged in the building to which they appertain. But it is difficult to comprehend how any separate structure can sustain a mill-dam, which appears to imply a necessity of resting on the bed of the stream dammed, self-sustaining, and incapable of receiving support from any structure not essentially a part of its own structure. Structures in a dam may give it strength; structures added to a dam may increase its strength; but all such seem of necessity to be component parts of the structure of the dam itself. Here, certainly, there does not appear to be any other.
A house may be built on an independent trestle pr other separate underpinning; or on a bridge, as happened in Janes-ville ; or on a scow afloat, as suggested by Cooper. Then, if a writing should mention the structure which sustains the house, the meaning would be apparent. But if a house be built with
■ Another view of the phrase, not without great weight, leads to the same conclusion. Back-water is the object of a mill-dam : the dam mere means to that end. So, by a familiar metonymy, the cause and the effect, the means and the end, are indifferently used to signify each other. Thus, in common speech, a reservoir often signifies the water kept, not the structure in -which it is kept; and a dam signifies the pond, and not the obstruction by which the pond is held. So we sometimes hear of fishing or bathing in a dam ; and often of the water in a dam, meaning in the pond. So a pond is made to include the dam, even in judicial phrase. Jackson v. Vermilyea, 6 Cow., 677. And grant of a dam is held to include an easement in the pond. Maddox v. Goddard, 3 Shepley, 218; Sabine v. Johnson, 35 Wis., 185. And a finding of the height of water in a pond is equivalent to finding the height of the dam. Aken v. Parfrey, 35 Wis., 249. Our statute on the subject, from 1840-to this day, has always been entitled “ Of Mills and Mill Dams ” only, though its chief relation — it might almost
It is always the duty of all courts to give construction to all contracts, if it can be done, ut res valeat. We are to avoid ambiguities, when we are able, by finding and giving effect to the intent and meaning of parties in the language of their contracts. And we have arrived at this -construction of the language of this contract, not without difficulty, in order that the contract may have effect without doubtful and dangerous recourse to parol explanations, as in Ganson v. Madigan, 13 Wis., 67.
So we hold that the appellant’s acceptance of the contract bound it, in legal effect, by a provision that its railroad track should not interfere with or injure the structure of the respondent’s dam.
The other question of construction is of much less difficulty. There are on the respondent’s premises two mills, lying easterly and westerly within a few feet of each other. The westerly is constructed and used, with bolting apparatus, to grind wheat; the easterly, without bolting apparatus, to grind coarse grain: both for customers bringing their own grain to be ground for their own use. And it is contended that the mill for coarse grain is not a grist-mill; that the contract has relation to the wheat mill only.
We understand the popular sense of the term “grist-mill ”
We therefore' consider both of the respondent’s mills tobe grist-mills. And the question arises, whether, the fact appearing that there are two mills, it can be determined by the contract itself to which of the two it relates. We think it can.
There is no positive intendment in the contract that there is only one grist-mill of the respondent; but only that there is one. Yet it gives an impression that there is but one. And, on the assumption that there is but one, when the contract provides that the track shall run not nearer than seven rods from the eastern line of it, there is a fair intendment that the track shall run eastward of it. The purpose is to fix a safe distance of the track from the mill; and it would be an unreasonable construction of the contract, that the track might run nearer on the west than on the east of it. When a measure for one object is taken from one side of another, it naturally — almost necessarily — implies the position of the first object to be on that side of the second. Men do not measure from the east line of a building or lot or highway, to fix the location of an object on the west side of it. Had it been the intention of the contract that the track might run on any side
And when the locus in quo shows two grist mills, it appears to us not only to disclose a latent ambiguity, but also to solve it. For, if the contract be to run seven rods eastward of one mill, and there are two within its terms, it is in effect a contract to run seven rods to the eastward of the eastward mill. If the track should run beyond seven rods from one and within seven rods of the other, it would be in violation of the letter and spirit of the prohibition. And it would be a wildly unreasonable construction, that the track might run west of the westerly mill as near as seven rods to the east line of the easterly mill, when it could not run east of the easterly mill nearer than seven rods. Before it appears that there are two grist mills, and a fortiori after, it is the fair intendment of the contract that the track should run at least seven rods east of the east line of the nearest mill. It would be trifling with the interest and object of the restriction, a mere play upon the words of the contract against its sense, to hold otherwise.
Perhaps this view of the contract on its face may be somewhat confirmed by the shape of the two mills as seen on the plat in the record. The easterly mill appears to be one rectangular parallelogram, with an unbroken easterly line. The westerly mill is of the shape of two joined together, with two easterly lines. And it might be further confirmed by the fact in evidence, that the line surveyed and proposed, before the contract, was eastward of both mills. But the terms of the contract as written, applied to the premises as they are, need no aid from extrinsic facts.
And we hold that the appellant’s acceptance of the contract bound it to run its railroad track not nearer than seven rods from the east line of the respondent’s easterly mill.
Subject to these two provisions, the contract vests the appel
The respondent pleaded for breaches, in effect, that the railroad track built by the appellant under the contract interferes with and injures the structure of the dam, and is nearer than seven rods to the east line of the easterly grist mill, by which the value of the dam and mill is lessened.
The issue was a simple one, and the rule of damages simple: the amount of direct injury to the respondent’s property by the appellant’s breach of the contract.
On the trial, a great mass of parol evidence was admitted to explain the contract, much of it inadmissible in any case, and all of it irrelevant in this; sometimes hard to be distinguished from evidence to other points, and tending, with other things, to confuse the trial and the record. But as all of it, perhaps, looked to the true construction of the contract upon its face, the principal error in this respect seems to have been in leaving to the jury what the court should have ruled for them. So far as the contract is concerned, it does not appear to have misled the jury; and perhaps most of it was merely irrelevant and harmless. We have more doubt about the admission of contracts of the appellant for right of way over other premises in the vicinity, offered for the purpose of explaining the respondent’s contract. They were probably inadmissible for any purpose. What they were, or how they might have tended to influence the jury, does not appear. The court below refused to instruct the jury that they had no bearing on the case, and that the respondent’s contract must be construed as written ; and gave no instructions restricting their effect as evidence. This would make us cautious in upholding the verdict. But, except upon the point of explaining the respondent’s contract, it may be that they are not within the rule of exception. Bonner v. Home Ins. Co., 18 Wis., 677; Chapman v. R. R. Co., 26 id., 295; Mead v. Hein, 28 id., 533.
We confess that we are unable to'understand ,on what view
But we prefer to rest our judgment on the rule of damages given to the jury. On that subject, the charge sets out by stating, in effect, that the respondent’s damages are the amount of depreciation in value of the property by reason of the appellant’s breach of contract. Had the charge rested there, it would have been unexceptionable. Snyder v. R. R. Co., 25
On the whole case, we are quite clear that justice requires that there should be another trial of this cause.
By ike Court. — The judgment of the court below is reversed, and the cause remanded for a new trial.