29 Me. 346 | Me. | 1849
The plaintiff made a written contract with the defendants to furnish timber for the frame of a ship.
It was contended in defence, that part of the timber furnished was of a bad quality and was rejected as refuse by a sworn surveyor. There was a memorandum indorsed upon the contract, that John Maxwell had been selected to superintend the moulding of the timber. The case is presented on exceptions taken to the instructions given to the jury.
They were instructed, “ that the true construction of the contract was, that Maxwell was agreed upon by the parties to decide upon the quality of the timber, and that if Maxwell decided to receive it under the contract, the defendants were bound by his decision, notwithstanding a portion of it should prove to be defective or should be pronounced to be refuse timber by the sworn surveyor.”
The effect of this language would appear to be, to make the presiding Judge instruct the jury, that the contract'determined, that Maxwell was agreed upon by the parties, to decide upon the quality of the timber. Yet it is obvious, that he could not have been so understood by the jury, for by a subsequent clause of the instruction, they were called upon to determine, whether Maxwell, “ in pursuance of the contract, with notice from the parties and intending to act under the contract, did decide upon the quality of the timber.”
To ascertain the true construction of a written contract, the situation of the parties, the acts to be performed under it, and the time, place, and manner of performance may be considered. The intention of the parties is to be ascertained by an examination of the whole instrument and of its effect upon any proposed construction, and such a construction should be adopted as will carry that intention into effect, although a single clause alone considered would lead to a different construction. The contract in this case shows, that the timber was to be cut and hewn, in conformity to certain moulds, at a distance irom its place of delivery. That it was expected to be transported through the Cumberland and Oxford Canal to Portland, and from thence shipped to the place of delivery. It was
It is insisted, that this could not have been the intention of the parties, because the contract provided, that the timber should be surveyed after delivery by a sworn or competent
The contract was evidently drawn by an unskillful hand and the language is so arranged as to leave the intention of the parties somewhat obscure or doubtful. Yet taking into consideration the circumstances as before named and the effect of a different construction, the conclusion is, that the construction adopted at the trial, cannot be regarded as an erroneous one.
The case states, that Maxwell testified, that he never saw the contract before the timber was cut and moulded, and was not requested by either party to act under it, and that he did not understand, by w’hat he did in the woods, that he was determining upon the quality of the timber under the contract. The case also states, that there was no opposing testimony. Yet it is obvious, that the jury, under the instructions given, must have found that he was notified and did act under the contract. They might perhaps have inferred it from the facts, that his name was indorsed upon the contract as the person selected for that purpose, and that he was found at the place and performing the duties required by it. However this may be, there does not appear to have been any just cause to complain of the instructions upon this part of the case.
Exceptions overruled.