Miller v. . Green

Adams, J. "Where it can be ascertained and followed without contravening legal principles, the intention of the parties is ordinarily-accepted as the proper guide in the interpretation of contracts. If the contract is ambiguous words cannot be supplied which import an intention not expressed when the contract is made, for then the intention of the parties is to be deduced from the language employed; but if there is a latent ambiguity — if the contract is not clear and unequivocal — preliminary negotiations and surrounding circumstances may be considered for the purpose of determining what the parties intended — -i. e., for the purpose of ascertaining in what sense they used the ambiguous language, but not for the purpose of contradicting the written contract or varying its terms. A latent ambiguity may arise where the words of a written agreement are plain, but by reason of extraneous facts the definite and certain application of those words is found impracticable. Hand v. Hoffman, 8 N. J. L., 71; 6 R. C. L., 839, 841; Page on Contracts, sec. 2060 et seq.; McMahan v. R. R., 170 N. C., 459; Simmons v. Groom, 167 N. C., 275; Merriam v. U. S., 107 U. S., 441. Neither the plaintiff’s agreement “to ship” nor the defendants’ agreement to “reconsign” the lumber ex vi termini determines the nature of their .contract. “In all eases it is held that the relation of the parties as principal and agent, or as vendor and vendee, is determined by the nature of the transaction, and not by the name which they give it, and the use of the words ‘agent,’ ‘commissions,’ etc., is of little significance. If the goods are delivered to the ‘consignee’ under such circumstances as to confer upon him absolute dominion over them, and he becomes bound to pay a stipulated price for them at a certain time, or upon the happening of any future event, the transaction amounts to a sale and delivery, and the title passes to him.” Buffum v. Descher, 96 N. W. R., 352. The last paragraph of the written agreement is susceptible of explanation by parol. Indeed, such explanation seems to be necessary. There is ambiguity as to the source from which the plaintiff was to derive his pay. It does not definitely appear, but it may be assumed that the bills of lading were sent by the defendant to the Kroeler Manufacturing Company, and that to each bill was attached a draft for 80 per cent of the contract price. The defendant was to receive $10 for every thousand feet. "What was the intention of the parties as to the disposition of the remainder? "Was the Kroeler Company to pay it to the plaintiff, or to the defendant? If to the plaintiff, was the Kroeler Company acting as purchaser from him or as the agent of the defendant ? If to the defendant, as perhaps may be inferred, did the defendant receive pay *655 ment as the seller of the lumber, or as the agent or broker of the plaintiff ? The answer depends on the intention. As we read the record the evidence relating to these questions is apparently conflicting, and we think that an admission by the parties or a determination of the facts by the jury, is essential to a proper construction of the contract. When such intention with respect to the payments is ascertained, the question whether the contract is a consignment or a sale to the defendants may easily be determined. If no admission is made, it will be necessary for the jury to fitid the facts from the evidence and apply the court’s instruction as to the law in finding ultimately whether the defendant was the agent or the vendee of the plaintiff. For the reasons assigned, there must be a New trial.