Thompson v. Thorne

83 Mo. App. 241 | Mo. Ct. App. | 1900

BOND, J.

This suit was begun before a justice on the following note:

“November 10, 1897.

“Feb. 1, 1898, after date I promise to pay P. A. Cox, agent, or order, $106.65 (one hundred and six 65-100 dollars) at Mountain Grove. Interest at the rate of eight per cent per annum from due until paid. This note to be void if Life Policy in the sum of $5,000 does not issue on life of William II. Thorne within sixty days from the date hereof.

“William H. Thorne,

“P. O. Mt. Grove, Mo.”

Indorsed on the back of above note as follows:

“Demand notice and notice of protest waived.

“P. A. Cox.”

Further indorsed as follows, to wit:

“Geo. W. Thompson.”

Further indorsed’on back as follows, to wit:

“Assigned to Geo. W. Thompson without recourse.

“Citizens State Bank,

“Feb’y 5j 1898. By E. E. Stewart, Cash.”

Defendant had judgment. Plaintiff appealed to1 the circuit court, where defendant again.had judgment, and plaintiff appealed to this court.

The errors assigned are, that the court admitted incompetent evidence, and erred in its instructions to the jury. The first point relates to the reception by the court of oral testimony on defendant’s behalf tending to show the meaning of the terms “tontine policy and tontine installment policy,” used in his application for the insurance, in part payment of which the above note was given. The written application of defendant and the policy issued by the company constituted the contract between them and was not subject to alteration or contradiction by oral evidence. But this rule does not exclude oral testimony tending to show the meaning of technical words or terms of art or trade, or latent ambiguities. The terms “tontine policy and tontine installment policy” are fairly within these classifications, and there was no error in the reception of the oral evidence showing the meaning given' to these terms by-the parties representing the insurance company in obtaining a contract in which said terms were embodied. This point is therefore ruled against appellant. There was no error in the instruction submitting the issue, as to the meaning of these terms created by the conflicting evidence adduced by the parties. It was not the duty of the court (as contended by -appellant) to construe these terms, for their uncertain significance rendered the'written contract latently ambiguous, and the meaning of contracts of that sort must be resolved as a fact, and hence the intent is properly submitted to the jury.

An examination of the instructions discloses m> error in the submission of the cause. Appellant complains that instruction number 4 in effect told the jury that respondent was not bound by his application. This point is not well taken. The court of its o-wn motion gave instructions numbers 3 and 4. In the former it told the jury explicitly that respondent was bound by the terms of his -application, subject to a modified right to. show the explanation given by appellant of the technical terms above quoted which were contained in the application. In instruction number 4 tbe court in substance said to tbe jury, that tbe question of tbe meaning of these terms was the issue submitted to them, and directed tbe jury that if they found in accordance with tbe testimony on behalf of respondent, then they should further find that be bad a right to refuse the policy if it did not accord with tbe application as it was explained and understood by him. There was. no error, under tbe facts in this record, in this instruction, and tbe judgment is therefore affirmed.

All concur.