94 Wis. 96 | Wis. | 1896
Lead Opinion
It is conceded that the language of the covenant of warranty, as contained in the deed, taking the clause as a whole without supplying any words by presumption, is meaningless. The respondent covenanted that the grantee in the deed, “ his heirs and assigns, in the quiet and peaceable possession of the demised premises against every person claiming any part thereof, by, through, or under- and no other-will forever warrant and defendP The learned counsel for the appellant contends that the court should, in effect, add to this clause the word “ them ” after the word “ under,” and “ they ” after the word “ other,” and thereby give meaning thereto. Counsel for the respondent contends that all that part of the covenant after the word a thereof ” should be suppressed as surplusage, leaving what would thereby remain a plain, general covenant for quiet enjoyment. The learned circuit judge adopted the former theory, which in effect held tha-t the clause constitutes a limited covenant against the acts of the grantors.
The foregoing rule does not allow the addition of words to a contract unless obviously implied. Where the language is plain and unambiguous, the apparent import of the words must govern. Story, Cont. § 780. But if the words are uncertain, such meaning, within the limitations stated, should be adopted as will best effectuate the intention. “ But words should not.be constructively put into the contract that are not there.” Parkhurst v. Smith, Willes, 327; Chitty, Cont. (11th Am. ed.), 106. Prof. Parsons sums up the rules thus: ‘ They do not require that the court shall always construe a contract to mean what the parties meant, but that it should give to the contract such construction as will bring it as near to the actual meaning of parties as the words they see fit to employ, when properly construed, and the rules of law, will permit.’ 2 Parsons, Cont. 494. On the particular point here presented he says, “ if a blank be left in an instrument, or a. word or phrase of importance omitted by mistake, the omission may be supplied, if the instrument contains the means, of supplying it with certainty, otherwise not.” Id. 563.
It is obvious that some word or words were by mistake-omitted from the instrument sued on, which renders the meaning of the covenant uncertain, but we cannot say that such instrument furnishes the means of supplying them with certainty. Therefore it is not within the office of judicial
Notwithstanding what has preceded, we are unable to hold with counsel for appellant that the warranty clause should be split up by rejecting that part only in which the omitted words occur. While the rule is that every part of a contract should be given force and effect if possible, and, if the meaning of the language of a part only is necessarily uncertain, such uncertain part must be suppressed, and effect given to the balance (2 Parsons, Cont. 505; Riggin v. Love, 72 Ill. 553), if thereby the intention of the parties can be effectuated, yet if the uncertainty grows out of the omission of words which cannot be constructively supplied and that affect the whole clause, evidently designed for a particular purpose which is rendered uncertain by such omission, then the whole clause must be suppressed.
Applying the foregoing to this case, we must hold the whole clause upon which plaintiff bases his cause of action uncertain beyond the power of the court to remedy by judicial construction, and that the demurrer was properly sustained.
By the Oowrt.— The order of the circuit court is affirmed,
Concurrence Opinion
I concur in the judgment given in this case, but not in the reasons assigned for it. The plaintiff counts on a general covenant for recovery, but it is evident from the covenant set out that it is not, and was not intended to be, a general covenant. The part which the plaintiff would have us reject, in order to make the covenant general, namely, the words “by, through, or under - and no other-will forever warrant and defend,” is conclusive
It is conceded in substance that the addition of words to a contract is permissible, if obviously implied, and there can be no doubt but that where the language is plain and unambiguous the apparent import of the words must govern; but in this case there is an uncertainty, and such construction should be adopted as will best effectuate the intention of the parties. This intention must be an expressed intention. Rickman v. Carstairs, 5 Barn. & Adol. 663. The question is, What is the meaning of the language the parties have used? not, What did they mean to say? Abbott v. Middleton, 7 H. L. Cas. 114; Smith v. Lucas, 18 Ch. Div. 542. But it is not necessary that such intention be stated in totidem verbis. It is sufficiently expressed, if within the rules of legal interpretation the court can say it is to be implied with reasonable certainty from the language of the entire instrument, otherwise not. And this is, I think,' the true sense of the case of Parkhurst v. Smith, Willes, 332. It is a well-established rule that “ omitted words may be supplied, repugnant words may be rejected, and words may be transposed, ... if the intention of the parties sufficiently áppears from the context.” Elphinstone, Interp. Deeds, 78. Accordingly the word “pounds,” omitted in an obligation or bond, has been implied, Lord TeNteiídeN saying: “No species of money is mentioned. It must be intended that he became bound for some species of money. The question is, whether from the other parts of the instrument we can collect what was the species of money which the party intended to bind himself to pay.” Coles v. Hulme, 8 Barn. & C. 568; State v. Schwartz, 64 Wis. 434. In Flight v. Lord Lake, 2 Bing. N. C. 72, Tindal, C. J., said, “ The only question is whether any person applying an ordinary understanding” to the instrument “could misapprehend
I think the covenant should be read as if the words omitted, “ them ” and “ they,” had been inserted where the blanks exist, and that under the covenant as thus construed the allegations of the complaint fail to show that there has been any breach of it. I cannot agree that the entire covenant or paragraph is to be rejected as void.