Construction Information Co. v. Cass

Prentice, J. The grounds of error assigned resolve themselves into substantially two: first, that the contract sued upon is so uncertain, ambiguous and indefinite in its terms, and so impossible of performance, that it is not an operative and enforceable agreement; second, that the plaintiff was not entitled to have judgment upon the complaint, for the reason that the finding shows that there had not been performance on its part, as is alleged. Underlying ■ both these contentions and, as we view the agreement sued upon, decisive of both, is the question of its construction. The defendant contends that the agreement is too uncertain in its provisions to be a valid contract, since the obligation to investigate is an obligation of wholly indefinite proportions ; that it is impossible of performance, since it calls for investigation as to each and every single project of the classes enumerated within the territory, and since the territory has no restriction short of the whole globe, save in case of the last-named class, with respect to which the territory is the whole of the New England States; and that for corresponding reasons there has, as the facts disclose, been no performance by the plaintiff. The agreement was made with full knowledge on the part of both parties of the methods of the plaintiff’s business, which was confined to the New England States. It will be presumed, therefore, that the kind of investigation required was that which was customary in the business, and not any other kind—uncertain and perhaps impossible in extent. With respect to the general field of investigation, the language of the agreement and the juxtaposition of words gives countenance to the defendant’s contention. Such a construction, however, makes the agreement one impossible of *217 performance, and therefore void, one which would not effectuate its manifest purpose and intent, and the manifest purpose and intent of the parties, and one quite different from what the parties at the time and during its continuance by their acts and conduct interpreted it to be. Such a construction will not, therefore, be given to the agreement unless its language necessitates it—unless a meaning more in harmony with the purpose of the parties cannot be reasonably given to the terms in which they have couched their undertakings. There are certain canons of interpretation which are to be observed in this inquiry. We should put ourselves in the place of the parties and study the language of the agreement in the light of the surrounding circumstances and of the apparent purpose the parties had in entering into the writing. Brown v. Slater, 16 Conn. 192; Goodyear v. Shanahan, 43 id. 204, 209. As between the two meanings which the words will bear, we should adopt that which will make the agreement a valid and not a void one. Brown v. Slater, 16 Conn. 192. We may look for assistance to the practical construction which the parties have themselves, by acts or otherwise, given to their language. French v. Pearce, 8 Conn. 439; Bray v. Loomer, 61 id. 456; Vermont Street M. E. Church v. Brose, 104 Ill. 206. If we approach the present agreement in this friendly spirit, we discover that its language readily yields to a reasonable and operative construction which makes it a rational contract, consonant with the interests and manifest purposes of the parties thereto. Under this construction the plaintiff is found not to have assumed the ridiculous and impossible task of specifically investigating and reporting upon each and every individual building project of the kinds enumerated, without exception whatsoever, throughout either the New England States or over the whole face of the earth, but to have undertaken to investigate and report upon each of the four enumerated classes of work as a whole. The language of the specification attempts a classification of projects simply and solely; not an individualization of specific projects. It seeks to create classes for general investigation, and not to *218 emphasize the necessity for the investigation of each and every individual instance falling within each class. With respect to the limitation as to territory which appears in the specification, to wit, “throughout the New England States,” there is little difficulty if, as we may, we disregard the incidentals of punctuating, paragraphing and the immediate sequence of words, and apply the words in question as qualifying- all those preceding and establishing the four classes of work. Ewing v. Burnet, 11 Pet. 41; Morey v. Homan, 10 Vt. 565. This was clearly the parties’ intent, and the phraseology does not forbid such interpretation. The interpretation thus given to the agreement sued upon at once dissipates all the defendant’s claims of error. The agreement assumes a construction sufficiently certain, the obligations imposed by it appear no longer impossible, and the finding discloses performance of it by the plaintiff. The judgment was therefore proper. There is no error. In this opinion the other judges concurred.