Patterson v. Judd

27 Mo. 563 | Mo. | 1858

Scott, Judge,

delivered the opinion of the court.

The court, in rejecting the evidence offered by the defendant, seems to have discarded from its consideration that part of the contract in which it is provided that “ in cases of loss of a portion of said rafts, the loss to be deducted pro rata as per number of logs contained in the whole.” The evidence, if admitted, might have thrown some light on this clause, which it must be admitted is rather obscure. The defendant, having agreed to deliver some logs at a fixed price, may have preferred to risk the market price for others, and would therefore send out a larger raft than would fill his contract with the plaintiffs. If this raft was lessened in bringing it to market, then, the loss would be deducted rata-bly from the portion reserved or intended for the defendant and the portion to which the plaintiff would oe entitled. We see no other way of interpreting the contract. The construction contended for by the plaintiffs, that the intention of the parties was that any loss that might happen in bringing down the rafts was to be divided ratably between the two rafts, effects nothing. What object is obtained by dividing the loss between the two rafts so far as cither the plaintiffs or defendant are concerned ? If both rafts were to be received notwithstanding any diminution they might sustain, where was the motive to any such clause in the contract ? In the absence of the evidence offered by the defendant, any interpretation we may put upon the contract must be more or less conjectural, and the evidence, when received, may show that in this matter we are in error.

In construing this contract, we see no reason for departing from the usual signification of the words “ more or less,” because the rafts are described as containing each from 350 to 400,000 feet, more or less. These terms apply to the two extremes, although their force is necessarily modified by the circumstance that any quantity of logs between '350 and 400,000 feet would be a legal compliance with the contract. These words would ordinarily cover a small excess or deficiency proportioned to the amount named, so that the parties would not be subjected to the inconvenience of a small excess in complying, or a small deficiency in not complying, with a contract, by leaving the excess on the hands of the vendor in the one event, or refusing to take the amount offered by reason of the deficiency on the other. The term “more” would not compel a party to take an indefinite quantity, nor would the term “ less” force him to take a quantity bearing no proportion to that stipulated. (Cross v. Eglin, 2 Barn. & Adol. 106.) In my opinion, nineteen thousand feet is a greater excess than the plaintiffs would have been bound to take; consequently, the defendant was not bound to deliver that quantity.

It will be observed that the evidence offered by the defendant and l-ejected by the coxxx’t was called for by an express reference to it in the contract.

Reversed and remanded.

Napton, Judge, concurs in reversing the judgment; Richardson, Judge, not sitting, having been of counsel.