5 Minn. 435 | Minn. | 1861
By the Court,
Appeal from an order of tbe District Court of Ramsey County, sustaining demurrer to part of an answer. The action was for two thousand dollars and interest, loaned and advanced by the assignor of the Plaintiff to the Defendant. The part of the answer demurred to, alleged in substance, that the Defendant as agent of W. H. Toler (the assignor of the Plaintiff) purchased for him a certain tract of land in St. Pauly of over the value of $2000, that said Toler being dissatisfied with the price paid for said land ($2000) by Defendant, it was agreed by and between them, that the Defendant should take the title of the land in his own name for convenience of sale and conveyance, and that Defendant whenever the time would justify a sale thereof with reasonable diligence, should, dispose of the same, and repay said Toler the two thousand dollars and interest, the Defendant being liable to Toler for any deficiency in said amount which might occur on the sale of the premises, and that with intent to evidence such agreement, a paper in writing was prepared, signed by the Defendant, and delivered to said Toler, of which the following is a copy, viz:
“Received of W. II. Toler, $2,000, which I promise to pay him out of the proceeds of the sale of a certain Jot of ground situate in the city of tit. Paul, and State of Minnesota, viz: the east half north west quarter section thirty-two and Range twenty-one. This obligation is intended if 1 should die before the sale of the above named ground, in the above named city and State, to bind my heirs, administrators and assigns to pay the same unto the said W. IT. Toler, or his heirs, administrators or assigns. Given under my hand and seal, this 7th day of November, 1859, one thousand eight hundred and fifty-nine. E. McNAIR. [seal.]”
The answer then alleges, that this is the same lot of ground first named in the answer, and that by mistake and inadvertence is not in said writing correctly described otherwise than by the obligation “a certain lot of ground situate in the city
The Defendant, having admitted the receipt of the money of the Plaintiff, must be held liable for the payment thereof, unless he can excuse himself by a legal defence. lie attempts to do this by setting up an agreement between himself and the party loaning the money, which agreement is in writing, is quoted in terms, and is the sole evidence of the contract. Does the alleged contract, if admitted, furnish any defence to the action ? To take the instrument as it reads, it cannot be said that the parties ever agreed that this money should be repaid from the proceeds of the sale of any land. It is impossible to determine from the instrument, what land the parties had reference to in the paper signed by the Defendant. There is a patent ambiguity in the instrument which cannot be explained by parol proof. There has been a difference of opinion expressed by elementary writers, as to what constitutes a patent ambiguity, but the rule seems now settled as stated in Cow. & Hill’s notes on Phil. Ev. part 2nd, Vol. 4, p. 525, as follows, viz : “An ambiguity is patent in this sense,” (i. e as used by Lord' Bacon,) “when the mere perusal of the instrument shows plainly that something more must be added, befoi’e the reader can determine which of several things is meant by it; and then the rule is inflexible that no evidence to supply the omission can be admitted.” The cases there cited go to sustain this definition, and the instrument set out in the answer falls within it. Green. Ev. Vol. 1, Sec. 300 ; Steph. Nisi Prius Vol. 2, 1544; 4 Sand. 31; 4 Mass. 205 ; 11 Johns 201. To make the instrument available for the purpose desired, it must first be reformed by an action brought for that purpose, or perhaps it might be effected in this action by making the proper averments. But the defect cannot be supplied by parol proof in the present state of [the pleadings. The only effect of the instrument in its present form is to
The judgment below is affirmed.
