Snoderly v. Bower

RICE, J. This is an action to recover balance alleged to be due on a written contract between the parties hereto, under which contract respondent undertook to farm appellant’s land and to raise and stack the hay grown thereon. The controversy arose over the provision of the contract which attempted to define the method of measuring the hay. The material language of the contract in question is as follows.: “The hay to be measured within ten days after the last cutting is stacked and to be measured according to government rule with a basis of Five Hundred Twelve (512) cubic feet to the ton. ’ ’ The case was tried before the court and a jury and a verdict returned in favor of respondent in the sum of $500, and judgment was entered on the verdict for that amount, from which this appeal is prosecuted. In II Eng. Ruling Cases, p. 718, the rule is stated as follows: “Where a determinate intention appears to be expressed by the written instrument, extrinsic evidence is admissible to show that the description of an object contained in the instrument is applicable with legal certainty to either of two objects; and, a latent ambiguity having been thus [487] disclosed, evidence of the surrounding circumstances is admissible to show which of the objects was meant by the description”; .... It will be seen from this rule that the process in explaining latent ambiguity is divided into two parts: First, the introduction of extrinsic evidence to show that the latent ambiguity actually existed, and second, the introduction of extrinsic evidence to explain what was intended by the ambiguous statement. It seems to be conceded by the parties that the term “government rule,” as it appears in this contract, is a latent ambiguity. The appellant in this case in order to point out what was in the minds of the parties at the time the term “government rule” was put into the contract, introduced evidence to show that at that time he produced a rule known as a government rule and showed it to the respondent. - This the respondent absolutely denied. The verdict of the jury could have been reached only on the basis that it found with respondent on this point. The appellant introduced further evidence to show that in that vicinity there were several rules known as the “government rule” for measuring hay. The respondent made no attempt to clear up the ambiguity by extrinsic evidence, but introduced a rule for measuring hay which he obtained from the department of agriculture. He admits that he had no definite rule in mind at the time he entered into the contract, but supposed that the government had some rule by which he would be willing to measure the hay. Counsel for respondent in addressing the court said: “I am not attempting to prove that this is the government rule except as the document itself makes the statement.” The document itself does not purport to be an official government rule, but one compiled and recommended by the department of agriculture. Respondent admits, however, that this rule was not in his mind as the government rule at the time he entered into the contract, he never having seen or heard of the rule until after that time. The document itself further shows that it was not printed until some time after the contract had been executed. [488] It will be seen then that the latent ambiguity in the contract has been exposed, but the evidence does not explain, or even attempt to explain, what was in the minds of the parties at the time the term “government rule” was inserted in the contract. It is not for the court or jury to make a contract for the parties, but only to determine what the parties intended the ambiguous terms to mean at the time they entered into the agreement. From the evidence in this case, it is clear that there was no meeting of the minds of the parties on the question as to what constituted the “government rule” when the contract was entered into, and that provision in the contract would therefore be void. (Raffles v. Wichelhaus, 3 Hurl. & C. 906, 159 Eng. Reprint, 375; Stong v. Lane, 66 Minn. 94, 68 N. W. 765.) The respondent seems to have realized the weakness of his position in declaring upon the express contract, and tried the ease upon the theory that the plaintiff was entitled to a specific amount per ton by weight, rather than by the specified rule. The evidence has been carefully examined to determine whether or not the appellant joined in and tried his case upon the same theory. It has been found that he did not, but on the contrary resisted the introduction of evidence by the respondent in his effort to prove the correctness of the rule of measurement used by respondent in attempting to establish the actual number of tons of hay stacked by him. Counsel for respondent asked the following question: “And what would you say about this method being a correct fair method of measuring 1 ” To which counsel for the appellant objected as follows: “We object to that unless it is further shown that he has tested it, and for the additional reason it would be immaterial unless it is shown that this was the measurement which was in contemplation of the parties to the contract at the time it was made.” As the appellant did not join in and try his case upon the same theory as respondent, but kept within the issues made by the pleadings, he did not waive the right to have the judgment supported by the pleadings. As the pleadings were based upon the express provision in the contract fixing the [489] rule of measurement, and nothing further, and it is shown conclusively from the evidence that there was no contract upon that point between the parties, the pleadings will not support the judgment. Upon a retrial of this case the district court should permit plaintiff to amend his complaint, if he desires, so as to set out the reasonable value of the services rendered. Upon that issue the proof would not be confined to the actual number of tons stacked, to be ascertained by weight or any rule of measurement. Any competent evidence tending to show reasonable value of the services rendered would be admissible. The judgment is reversed and a new trial ordered. Costs awarded to appellant. Morgan, J., concurs.