Batton v. Jones

Hart, J., (after stating the facts). It is earnestly insisted by counsel for the defendant that the judgment should be reversed, because the weight of the evidence showed that, under the custom of the country, the words, “subject to the-usual overflow clause,” meant that, in case the land was overflowed, the tenant would pay a part of the crop for rent on the overflowed land and the average price per acre in cash for the land that was not overflowed. It does not make any difference where the weight of the evidence on this point was. It is sufficient to say that there was testimony on the part of the plaintiff tending to show that the words referred to meant that, in case of overflow, the tenant had the option to pay the stipulated rent in cash, or a part of the crops raised by him on the whole place. Of course it is well settled that usages and customs of trade cannot be invoked to defeat the express terms of a written contract, being applicable only where the contract is silent or where its terms are ambiguous. Southern Coal Co. v. Searcy Transfer Co., 152 Ark. 471. It is equally well settled, by the authorities cited in the case last mentioned, that a local custom may be proved in proper cases to remove ambiguities and uncertainties in a contract. Proof of a custom is also admissible to explain what is doubtful. Therefore it was proper in the case before us to receive testimony as to the meaning of the words, “subject to the usual overflow clause.” Each party introduced evidence as to what was the meaning of these words in the particular locality where the land rented was situated, and the court submitted to the jury the question under proper instructions on the' subject. The jury returned a verdict in favor of the plaintiff, thereby -saying that it believed the evidence for the plaintiff on this point. As we have frequently pointed out, under -our system of practice it is the duty of a trial court to set aside a verdict which is considered by it to be contrary to the weight of the evidence. The reason is that the circuit judge hears the testimony -of the witnesses, and has an equal opportunity with the jury to weigh their testimony. On the other hand, no such opportunity is afforded us, and this court cannot set aside the verdict of a jury where there is any evidence of a substantial nature to support it. St. Louis Southwestern Ry. Co. v. Ellenwood, 123 Ark. 428. Again, it is insisted that the court erred in admitting the testimony of witnesses to the effect that the tenant raised twelve bales of cotton on the land that was not overflowed. This testimony was competent. According to the evidence for the plaintiff, where land is rented for a stipulated price in money, and a part of the land is overflowed, the tenant has the option to pay the stipulated money rent, or a part of the crop as rent. Therefore it was competent to prove how many bales of cotton were raised on the land that did not overflow, in order that the jury might determine the value of the crop. Again, it is insisted that the court erred in excluding from the jury certain testimony offered by the defendant. It appears that the defendant had rented the same land from the plaintiff the year before, and had inserted a provision in writing defining what was meant by the words, “subject to the usual overflow clause.” There was no error in excluding this testimony. Where the parties defined these words by particular language whose meaning was not doubtful, they fixed their rights under the contract, and parol evidence could not be introduced to give the words a different meaning from those agreed upon by the parties. In the case before us they used the words, “subject to the usual overflow clause,” without defining them. It cannot be said that, because the parties had defined these words in a contract entered into between them the year before, this meaning should be given to a subsequent contract where the words were not defined. By omitting to define the words in the contract, it is evident that the parties meant that they should be given their customary meaning in that particular locality. Therefore it was competent to show by parol evidence what these words meant in that particular locality, and it would be incompetent to show that these words meant what the parties had defined them to mean in a previous contract. The definition given the words in the previous contract made it definite and certain, and the absence of such, definition in the contract before us rendered! the words ambiguous, so that parol evidence could be resorted to to determine their meaning’. It follows that the judgment must be affirmed.