Keller v. Webb.

contract is silent as to the weight of the casks, and therefore the number of pounds which the defendants were obliged to take can only be ascertained by finding what the parties understood by the term "casks." The damages which the plaintiff is entitled to recover can only be computed by knowing the weight of the casks named in the contract. It is open to both parties to show by all the circumstances, including what the parties may have said before, or at the time of the contract, or by their admissions afterward, what was meant by that term. This the defendants tried to do in the evidence offered by them and excluded by the judge; and for this exclusion of evidence the entry must be

Exceptions sustained.

NOTE BY THE REPORTER. —See Donley v. Tindall, 32 Tex. 43; 8. C., 5 Am. Rep. 234, and note, 241; Willmering v. McGaughey, 30 Iowa, 205; 8. C., 6 Am. Rep. 673, and note, 687. In the note to Donley v. Tindall, supra, three rules are laid down for the admission of parol evidence to explain mercantile contracts.

The third rule, which is the one applicable to and followed by the principal case, is thus stated:

The conversations and acts of parties to a contract, at and about the time of the making of the contract, as well as subsequent to the making of the contract, are admissible in evidence to show what sense the parties attached to any term or phrase used in the contract, which is in itself susceptible of more than one interpretation, or which, viewed in the light of the evidence explanatory of the subject-matter, the relations of the parties, and the surrounding circumstances, may reasonably be susceptible of more than one interpretation

The principal authorities on this proposition are the following: Birch v. Depeyster, 1 Starkie, 167, 1816. This was an action of assumpsit brought by the owners of an India ship against the captain for the amount of freight received by him. By the contract between the parties, the defendant was to receive a stipulated sum in lieu of privilege and primage. The freight claimed had been earned in respect of goods carried in the cabin, and the principal question was, whether the terms of the contract excluded all right on the part of the captain to use the cabin for the carriage of goods on his own account. On the part of the defendant it was proposed to give in evidence a conversation between the parties before the agreement was entered into, in the course of which it had been expressly stated by the plaintiff, that the defendant was to have the use of the cabin entirely to himself. For the plaintiff it was contended that no evidence was admissible by way of explanation. except as to the general meaning of the term privilege in mercantile understanding. GIBBS, C. J.: "The distinction which you take is, that evidence may be received to show what the mercantile part of the nation mean by the term 'privilege' just as you would look into a dictionary in order to ascertain the meaning of a word, and that it must then be taken to have been used by the parties in its mercantile and established sense. But I think that the word 'privilege' is of so indeterminate a signification that I must receive this evidence. It is certainly evidence, and in the way in which it is offered falls within the general current of mercantile understanding, since they had, previous to the agreement a conversation on the subject of privilege; to this extent it is evidence if not further, and if the term has been used in different trades in different ways, the conversation is evidence to show in which sense it was used on the present occasion." The conversation was then admitted and being to the effect stated, was held to be decisive of the case.

In Wait v. Fairbanks, Brayton (Vt.), 77, 1817, parol evidence was held admissible to show the agreement and understanding of the parties, in reference to the phrase "good custom cowhide," in a contract for the purchase of boots.

Crawford v. Jarrett, 2 Leigh, 630, 1831, was an action of assumpsit against A, B and C,

Keller v. Webb.

on a written agreement to indemnify a constable," agreeably to law," for selling under executions. The agreement was signed by A, B and C, although none but A was named in the body of it. Parol evidence was received to show that B and C at the time of the execution acknowledged it, and admitted that they were sureties for A in the same. This was sustained.

In Gray v. Harper, 1 Story, 574, 1841, the question was the meaning of the word "cost," in a bookseller's contract. The contemporaneous conversations of the parties were admitted in explanation of this term. STORY, J., observed: "I do not think that it is absolutely incompetent for the parties to show, from the conversations between them at the time of the making of the contract, what was the sense in which they then understood the word 'cost,' as used in the contract, as it is a word capable of a larger or narrower construction according to the subject-matter and the circumstances of the particular case. These conversations may be deemed a part of the res gestæ, and thus may be referred to as explanatory of the real intentions of the parties in the use of the word."

Walrath v. Thompson, 4 Hill, 200, 1843, was an action on a guaranty, contained in a letter, agreeing to pay 'your account." The court held the phrase ambiguous, and admitted parol evidence, embracing the contemporaneous conversations of the plaintiff and the party for whose benefit the guaranty was given, to apply it to an account not existing when the letter was written, but contracted afterward on the faith of the letter.

Hart v. Hammett, 18 Vt. (3 Wash.) 127, 1846, was an action on a written agreement for the sale of "winter strained lamp oil," warranted to be equal to sample and to stand the climate of Vermont without chilling. The plaintiff's evidence tended to prove that the oir was poor and would chill. The plaintiff introduced parol evidence to show the sense in which the term "winter strained oil" is used by dealers in oil, and it appeared that it is used sometimes to designate sperm oil and sometimes to designate whale oil, and that the latter is inferior, and that the defendant delivered whale oil. The defendant, after introducing evidence to prove an acceptance by the plaintiff upon comparison with the sample, offered to prove by parol that he informed the plaintiff at the time the contract was executed, that the sample and the oil which he was selling to him was not sperm oil, and that he did not sell it to him as such, and that he could not tell him what it was. This was received under objection. Verdict for defendant, and on appeal, the judgment affirmed. Judge BENNETT says: "That it was competent for the defendant to show by parol that the terms by the usage of the trade included both sperm and whale oil, no one can doubt. The object of admitting proof of usage in such case is that effect may be given to the contract according to the intent of the parties. Can there be any sound objection to the defendant's showing by parol the sense in which the terms were in fact used by the parties when making the contract? It may well be conceded that parol evidence should not be admitted to support a construction different from what the words themselves imply. To permit this would be to permit a written contract to be controlled by parol testimony. Parol evidence is, however, admissible to give an application of a written contract to its subjectmatter, in cases in which the thing as expressed is applicable indifferently to more than one subject. In such case, the question being what was intended to have been expressed through the written instrument, any evidence which would be pertinent to that inquiry should be received. In many cases an inference of intention is drawn from circumstances. If the intention of the parties is expressly declared, this should be regarded as far more satisfactory than to have the intention inferred; and evidence to this point cannot but be material and relevant to the inquiry."

French v. Carhart, 1 Comst. 96, 1847, involved the construction of a reservation in a deed and the right of defendant to use a stream of water. Evidence was given of the acts of the parties, to aid in construing the grant. The judge on the trial was asked to charge that the language was ambiguous, and to leave it to the jury to interpret its meaning by the language itself and the surrounding circumstances. This was refused, the judge charging that the reservation had only a certain force. A new trial was granted. Chief Justice JEWETT observes: "It is a cardinal rule in the construction of contracts that the intention of the parties is to be inquired into, and if not forbidden by law, is to be effectuated. Too much regard is not to be had to the proper and exact signification of words and sentences, so as to prevent the simple intention of the parties from taking effect. And whenever the language used is susceptible of more than one interpretation, the courts

will look at the surrounding circumstances existing when the contract was entered into, the situation of the parties, and of the subject-matter of the instrument. To this extent, at least, the well-settled rule is that extraneous evidence is admissible to aid in the construction of written contracts. Applying this sound and rational principle to the language of the reservation in question, and to the extraneous circumstances just noticed, it would seem impossible to err in the construction. Another rule of construction is that when the words of a grant are ambiguous, the courts will call in aid the acts done under it, as a clue to the intention of the parties. Upon this principle we are permitted also to look at the undisturbed use of the right contested, on the one side, and the unqualified acquiescence on the other, down to the time of the plaintiff's purchase of the premises in 1837 ; and these circumstances are also justly entitled to weight in the construction of this reservation."

Norton v. Woodruff, 2 Comst. 153, 1849, was an action on a written contract by millers to "take" wheat and "give" flour for it at such and such a rate. The court held that the language was unmistakable, and meant a sale or exchange, and not a bailment, and that neither the declarations nor the conduct of the defendant subsequent to the agreement were admissible with a view to its construction. They concede, however, that evidence of this character may be resorted to for the purpose of proving a contract, or the sense in which particular terms were used by the parties, but it does not appear that any such evidence was offered for any such purpose.

66

Almgren v. Dutilh, 1 Seld. 28, 1851, was an action to recover freight. The defendant chartered for a single voyage, at a gross sum, the whole tonnage of the plaintiff's vessel, except so much thereof as may be necessary for the accommodation of the officers and crew, and the storage of provisions, water and fuel for the same." Held, that the word necessary did not mean indispensably necessary, but that the character of the vessel, the nature of the voyage, etc., were to be considered, and that proof of the conversation between the captain and the defendants when in negotiation for the charter of the vessel, in relation to the parts of the vessel which would be required for the use of the captain and crew and stores, was properly admitted. GARDINER, J., says of this testimony: "It did not go to vary the written agreement, but to prove by the acts of the parties the space which they esteemed necessary for the accommodation of the crew."

In Barrett v. Stow, 15 Ill. 423, 1854, it was held in an action for breach of warranty in an agreement to put a composition roof upon a “building,” that parol evidence was proper to show whether the parties intended to embrace a one story rear part of said building. It was claimed by the defendant that the warranty did not extend to the ell. The conversation of the parties were held admissible with that view, the court remarking, “in order to understand the meaning of the parties, it is proper to ascertain such extrinsic circumstances as the parties had in view when the contract was made."

Macdonald v. Longbottom, 28 L. J. (N. S.) Q. B. 293, 1859. The defendant, by a contract in writing, purchased of the plaintiffs, who were farmers, a quantity of wool, which was described simply as "your wool." Some time previously a conversation had taken place in which the plaintiffs stated that they had a quantity of wool, consisting partly of their own clip, and partly of wool which they had contracted to buy of other farmers, and that altogether it amounted to “2,300 stones, 100 stones more or less." The quantity delivered was 2,700 stones, and the defendant refused to receive it. In an action for not accepting the wool it was held by Lord CAMPBELL, C. J., and ERLE, J., that the conversation was admissible in evidence for the purpose of explaining what the parties meant by the term "your wool;" but that the quantity expressed by the plaintiffs formed no part of the contract, which was complete on the face of the writing; by WRIGHTMAN, J, that the conversation was admissible in evidence, and that the quantity of wool therein described became part of the contract, so that the defendant was not bound to receive the larger quantity which was delivered. It was contended in argument on the part of the defendant that he was not bound to receive the wool purchased of others. To which ERLE, J., replied: "The wool which they had bought of those persons was as much their own as that which they had of their own clip." Chief Justice CAMPBELL says: "I am of opinion that when there is a contract for the sale of a specific subject-matter, parol evidence may be received to show what was the nature of that subject-matter, and that in effect may be by proving what was in the knowledge of the parties at the time of the contract being

Keller v. Webb.

made. Now in order to show that, it was proposed to prove the conversation between the plaintiffs and Stewart, the agent of the defendant, in which it was mentioned that the defendant had wool of his own, and also that he had contracted for the purchase of other wool. There was knowledge in both parties of what the subject-matter was. Then is there any difficulty in admitting what passed at that conversation? I think that there is none. It is no part of the contract, and is not adding to or varying a written contract, but it is evidence which enables us to say what the contract referred to." ERLE, J., says: "If they had informed the defendant that they had the wool partly from their own farm and partly from their neighbors, it would not vary the contract, nor would it add to it; it is not only the meaning of the plaintiff but also of the defendant." In Mumford v. Gething, 7 C. B. (N. S.) 305, 1859, the agreement was : "In consideration of my entering upon your employ at a salary to commence with at £50 a year, I herewith agree to do so; with the understanding that in the event of my wishing to travel, and doing so for any other house in the same trade, on any part of the same ground, to pay you the sum of 501." It was held that to show that the contract was not void as in restraint of trade, a conversation of the parties before the making of the contract was properly received, it appearing therefrom that the “ground was the midland district."

Ganson v. Madigan, 15 Wis. 144, 1862, was an action to recover the price of a reaping machine, to be manufactured. The contract which was in writing, and contained in an order for the machine, provided that the machine, when finished, should be" capable, with one man and a good team, of cutting," etc. The question was as to the meaning of the word ⚫ team," whether it meant a two horse or a four horse team. Held, that although the ambiguity was patent, yet it was of such a nature that it might be explained by oral evidence of the circumstances attending the making of the contract, and that the declarations of the plaintiff's agent, who procured the order, made to the defendant at the time the order was given, as to the amount of power which the machine would rerequire, were properly received.

Blair v. Corby, 37 Mo. 313, 1866, was an action upon a written contract for building a railroad, and particularly to recover for extra work done under said contract, namely, excavation of indurated earth. The dispute was whether this was covered by the term "hard pan" in the contract. The plaintiff offered to prove that it was expressly agreed that the contract was not to apply to indurated earth; that there was a special agreement as to indurated earth; that it was understood by the parties that there would be no indurated earth to be excavated; and that among railroad men the term "excavation" does not include indurated earth. This evidence was all excluded at the trial, but a new trial was granted for this reason, and the decision was put upon the ground that "extrinsic and parol evidence was admissible to interpret and explain the meaning of the words among railroad men and as understood by the parties."

In Thorington v. Smith, 8 Wall. 1, 1868, it was held that a contract payable in the Confederate States, during the rebellion, in "dollars" may be shown by parol to have been in fact payable in Confederate dollars. The agreement and understanding of the parties at the time of making the contract was allowed to be proved, together with the surrounding facts as to the political state of the country

Goodrich v. Stevens, 5 Lans. 230, 1871. This was an action for breach by the vendee of the following contract: "Bought of H. P. Smith, his crop of flax, 200,000 lbs., at 25 cents per pound." The defense was that the contract was for so much flax to be raised by Smith, and that he did not raise the required amount. The trial court held that such was the legal meaning of the contract; and refused evidence offered by the plaintiff of conversation at the time of the making of the contract to show that the vendee understood that the flax was mostly purchased by the vendor and not raised by him. This holding was reversed by the General Term of the Supreme Court.

Kennedy v. Standard Sugar Refinery.

KENNEDY V. Standard Sugar RefinERY.

(125 Mass. 90.)

Damages — mental suffering — employee against master.

Owing to the negligent insecurity of a platform on which the plaintiff's intestate was employed by the defendant, the intestate fell twenty feet to the ground, became instantly unconscious, and died in thirty-six hours. In an action for damages, held, that damages should not be awarded for bis mental suffering during the fall.

A

CTION for negligence occasioning the death of plaintiff's intestate. The facts appear in the opinion.

The judge, on the question of damages, instructed the jury that "the damages will be limited to compensation for his mental sufferings and his physical suffering and loss. No damages can be recovered on account of his death. If the jury find that he was unconscious, then there was no suffering during such time as he was unconscious; but in estimating the amount of damage, the jury may include compensation for mental or other suffering endured by the intestate from the time he fell until he struck the ground." Plaintiff had a verdict and the defendant excepted.

R. M. Morse, Jr., for defendant.

J. A. Maxwell, for plaintiff.

MORTON, J. The plaintiff's intestate while at work upon a platform, by reason of a defect, for which the defendant is liable, fell a distance of about twenty feet to the ground. The evidence tended to show that he became unconscious immediately upon striking the ground, though there was conflicting evidence as to whether he regained consciousness before his death, which occurred about thirty-six hours after the accident.

[Omitting an obiter remark.]

The defendant now concedes the correctness of this instruction, and excepts only to the last clause, which it contends allowed the jury to find substantial damages for the mental suffering of the intestate from the time he fell until he struck the ground. The