66 Ky. 249 | Ky. Ct. App. | 1867
delivered the opinion oe the court :
On the 17th of September, 1866, E. O. Piles, by a written contract, sold, and engaged to deliver, to M. P. Marshall, J. M. Chambers, and R. M. Marshall, at Shannon’s scales, in Mason county, Kentucky, four hundred hogs of minutely described quality, “ averaging three hundred pounds, the smallest hog not weighing less than two hundred and thirty pounds,” at the price of nine dollars a hundred, to be paid twenty days after delivery. The vendees having appointed the 20th of November, 1866, for the delivery, the parties attended on that day, at the designated place, where thé vendor had more than four hundred hogs of the prescribed quality, and proposed to the
The interpretation of the effect of the contract as to the average weight is the radical and only embarrassing question in the case.
It appears from the testimony that hogs of a higher average than three hundred pounds were more valuable by the hundred than hogs of the latter average; and this is urged to show that the parties intended only that the average should not be less than three hundred pounds; and this construction is rather indicated by the fact, that while the parties stipulated that no hog should weigh less than two hundred and thirty pounds, they were silent as to any excess over the average of three hundred pounds. But, without any express proof of the object of the appellants. in fixing the average, this court must ascertain their purpose by considering the terms of the contract and the accompanying circumstances and presumptions.
To ascertain the intention of the parties is the only aim of interpretation; and when the terms of a written contract are ambiguous, the subject-matter and presumed object of the parties are admissible and pertinent considerations ; and the words employed should altogether be harmonized as far as possible, and interpreted consistently with practical common sense.
The circuit court, by its instructions, seemed to construe the contract as to average to mean that the average should not be less, but might consistently be more, than three hundred pounds; and this court inclines to the same construction.
The hogs were apparently bought for speculative profit in the sale of the pork. At the date of the contract, the market price at the time of delivery was uncertain, and both parties expected to make a profit; and as four hun
It is not unreasonable, therefore, to presume that each party expected a greater profit by a high than a low average, and that the higher the better for each. But it might have been difficult and even impossible to gather as many as four hundred hogs, averaging much more than three hundred pounds; and, consequently, that being a good average of a good vendible lot, and being also more easily attained than one much higher, it is reasonable to presume that these considerations led to ' a mutual understanding that the average should be at least three hundred pounds; and this presumption is fortified by the rather significant circumstance, that the parties stipulated that no hog should weigh less than two hundred and thirty pounds, and left an indefinite margin as to the maximum weight of all the hogs.
Interpreting the words of the contract according to the circumstances existing at the date of it, and the presumable contemplations of the parties at that time, no violence is done to the words, in a practical sense, by construing them as intended to fix the minimum average, and leave the maximum unlimited, except by convenience and reasonable practicability; and that interpretation accords most with common sense, the context, and the subject of the contract. Upon this construction none of the instructions to the jury are essentially exceptionable, and the appellee was entitled to damages.
We cannot adjudge that the amount assessed was excessive. It seems to have been compounded of the difference between nine dollars and six dollars, the sum
And as both parties repudiated the award which transcended the submission, that abortive adjustment is. not now in the way, and cannot be made available against the judgment.
While each pai’ty seems to have acted honorably and in good faith, the law seems to us to be for the appellee.
Wherefore, the judgment is affirmed.