90 Ark. 272 | Ark. | 1909
(after stating the facts). I. When the various paragraphs of this contract are considered together, as they must be, it will be seen that they refer to the subject-matters of the sale of the timber and of the leasing of the mill in such a manner as to show that its various provisions are interdependent and preclude all idea of the divisibility of the contract. Construing the contract as a whole, its provisions indicate that it was the intention of the parties that there should be a sale of the timber mentioned, and also the use of the mill mentioned for the purpose of “sawing said timber into lumber,” and that the one was not to exist independent of the other. Indeed, the language of the contract indicates that the parties contemplated, in the making of it that there could not be a sale of the timber according to the terms of the first, second, third and ninth paragraphs of the contract without a lease and use of the mill plant as provided for in the other paragraphs as well as also in the ninth. Here is one instrument, with various provisions so interwoven by cross-reference as to show an intention to make the agreement concerning the disposition of one subject-matter the consideration for the agreement concerning the other. They both form the whole consideration for the contract, and it must be considered as an entirety to carry out the intention of the parties to it, as-indicated by the language employed to express such intention. “The modern cases show,” says Mr. Clarke, “that the tendency of the courts is not to construe promises to be absolute and independent of one another, where they form the whole consideration for one another, unless there is some very definite expression of an intention of the parties to that effect.” Clarke on Contracts, § 244; 9 'Cyc. 643; Ex parte Hodges, 24 Ark. 197; Ish v. Morgan, 48 Ark. 413. The construction of the contract was for the court.
II. But, if we are mistaken in the view that the contract was unambiguous, and that the languge employed of itself showed that it was an entire contract, then it was the duty of the court to consider the testimony offered in evidence. While it is in the discretion of the court to receive testimony offered after the cause has been submitted, that is quite a different matter from rejecting evidence that would enable the court to properly construe the contract. The offered testimony revealed the situation of the parties and the subject-matter of the contract, the circumstances, of the transaction, the inducement for making the contract, and the object the parties had in view. It is proper for the court to be in possession of these in order to determine what the parties meant by the language employed to express their agreement. Courts may acquaint themselves with the persons and circumstances that are the subject of the statements in the written agreement, and are entitled to place themselves in the same situation as the parties who made the contract so as to view the circumstances as they viewed them, and so as to judge of the meaning of the words and of the correct application of the language to the things described. Goddard v. Foster, 17 Wall. 123; Baldwin v. Carter, 42 Am. Dec. 735; Matter of the N. Y. C. R. R. Co., 49 N. Y. 414; Blossom v. Griffin, 7 Am. Dec. 75 and note; Beach on Cont. § 719; Haney v. Caldwell, 35 Ark. 156.
There was nothing in the proffered testimony that tends to vary or contradict the terms of the written contract, and certainly if the contract in itself had been of doubtful signification this testimony would have made its interpretation plain beyond peradventure, and would have shown it to be an indivisible contract.
The court erred, therefore, in its construction of the contract and in rendering judgment for the appellee. For the error indicated the judgment is reversed, and the cause remanded with directions to enter judgment against appellee and the American Surety Company for three hundred dollars.