17 Ill. 389 | Ill. | 1856
The suit was not brought upon a written, or special verbal contract; but upon trial, the plaintiffs produced, upon notice of defendant, and defendant read in evidence, a written contract for three hundred cords of wood, at two dollars per cord.
All the instructions which have reference to a contract, a contract price, or to delivery of wood under and according to contract, must be understood as referring to this contract read in evidence; for there was no proof in the case of any other.
It becomes important, therefore, to construe this as the contract, and ascertain the true intent, meaning, and obligation of the parties, before we can pass upon the correctness of the instructions, and the sufficiency of the evidence, under them, to sustain the verdict for $226.
Counsel on both sides have been at fault and the court can throw no light upon the manner of making that sum from the evidence. If teamsters’ estimates, (for there were but sixty cords sworn to have been measured by any of them,) are supposed to be unreliable, upon what basis can we stop short of a reduction down to the sworn measurements delivered and paid for ?
We understand the contract phraseology, “now delivered and being hauled and piled on the bank of the Illinois Eiver,” as identifying the particular wood contracted for, which, with one hundred dollars paid at the time, as earnest money, to bind the bargain, might give plaintiffs a lien, a prior claim, and superior right to other purchasers or incumbrancers.
But we do not perceive the intent of the parties, from this language, to treat the delivery of the wood there as a delivery in the 'sense of changing the property, by change of possession, risk and complete ownership—as by actual delivery. This sense and meaning is inconsistent with, and wholly excluded by, the very next stipulation of the contract: “ The above wood is to be piled eight feet high, and delivered to said company when called for.” This delivery was unquestionably used in the sense of a change of possession, and complete ownership. The former in the sense of identifying and including, as within the contract, that already brought and delivered upon the bank, that so being brought and delivered, and as much more as would fill the amount. Any other construction would involve the contradiction of two deliveries in the sense of a change of possession and ownership. If the first delivery mentioned in the contract was used in this sense, many modes of expression would have secured the object of the following clause, without involving the apparent and obvious sense of a final change of possession and ownership. ■ Such as, “ The wood shall be piled eight feet high.” “ The wood so delivered shall be piled,” &c. The first delivery used could not have been complete, because an additional act—“ piled eight feet high ”—was to be done"; yet in stipulating for this act of preparation of the wood for measurement and security, the plaintiffs also stipulated for a delivery when “ called for,” which must have reference to the whole contract for 300 cords “ delivered and being hauled and'piled on the bank.” The intention and true meaning of the parties to this contract, must be gathered from the contract itself, like all other written contracts, and cannot be altered, changed, modified or explained by parol, unless an ambiguity brings it within the exception to the general rule on that subject. Nothing so appears. Juries exclusively find upon the fact of making of contracts, and when so found written, they find the true intent and obligations, under the instruction of the court. Any material mistake in an instruction, in the true intent and obligations imported by the language used, is error, and subject to correction.
In examining instructions, courts should not indulge in critical astuteness, to find error. We must, therefore, understand the court, in the first instruction, as referring to a final delivery, and not a deposit, in the sense of the contract and under it. If the jury wrested the sense, the fault is in the verdict, not the instruction.
The second is clearly wrong, and it shows that the defendants, in drawing it, discovered a difficulty into which it led them, and from which they sought to escape by “ the understanding of the parties,” supposed to exist. When no time of payment, on sale and delivery of personal property, is fixed, the law fixes the time of delivery as that of the payment. The parties being silent here, there could, under this contract, be no “ understanding ” about taking away the wood on trust, without payment. The vendors had the right to make a complete delivery in fulfillment of their contract, but subject to a lien and detention until payment, which was due on delivery. They might deliver without, it is true, but the law fixes the “ understanding ” and meaning of the parties to be for cash, not trust, or credit. But the instruction evidently construes the delivery, or deposit on the bank, and piling, as a change of possession or ownership.
The third instruction is correct.
The qualification to the plaintiffs’ second instruction is erroneous, in allowing the jury to engraft another contract upon the written one, as part of it, by an “ understanding of the parties.”
The contract was explicitly for three hundred cords—no more, no less—and parties are not at liberty, by “ understandings of the parties,” to make it cover five hundred and fifty-five cords, or any other different amount. It would change, by adding largely to, the contract.
If there were another agreement, written or verbal, for wood, embracing the same or similar terms, this should have been proven, and the instruction applied to it. The qualification of the qualification will not cure the error, for it assumes that it might be so proven, though it could not be presumed, and this is not a correct presentation of the rule.
We see nothing objectionable in the sixth instruction, and its several qualifications. The measurement is there put as an illustration of further acts to complete a delivery, and we understand the qualifications as further illustrations. In this view, all are correct. Measurements may become essential to delivery, when required to separate a less from a greater quantity. It may be done, also, as a safe and convenient mode of proving the quantity, in some instances, and not essential to delivery.
The verdict is clearly unsustained by evidence, and the jury were misinstructed, as shown.
Had there been evidence, and the verdict rested upon the weight or preponderance, we should not interfere upon any slight differences with them.
But the delivery of five hundred and fifty-five cords oy the bank, by teamsters’ estimates, even were it shown by actual measurement, with the delivery to plaintiffs of two hundred and eighty-six cords, under a contract for three hundred, at two dollars per cord, and payment therefor at that price, and the payment of three dollars per cord, upon delivery of fifty-eight cords more at a subsequent time, we are unable to torture into an agreement for all that may be brought and piled on the bank, at the risk of plaintiffs, at any price. Much less would the law allow such facts to make it a part of the written agreement, upon any understandings.
We are unable to sustain this judgment, upon the record before us.
Judgment reversed, and cause remanded for new trial.
Judgment reversed.
