Foster v. Berg & Co.

Mr. Justice Trunkey delivered the opinion of the court, November 12th 1883. The construction of a written instrument is exclusively for the court; except when it cannot be understood without reference to facts not within the writing, and then the jury are to judge of the whole together. If there be a patent ambiguity in the terms of a written contract the court must solve it; but if ambiguity arise from extrinsic evidence it must be solved by the jury. Not controverting these familiar rules, the defendants contend that under all the testimony the question whether they had notice of Foster’s title to the oil at the time it was sold, was for the jury; and, also, that if the court improperly submitted the construction of the writings to the jury, the error was harmless, for the writings fail to give notice of Foster’s title. As the cause was tried the question was submitted upon the writings alone. The plaintiff’s fourth point was, “ The telegrams and letters in evidence show that the oil was Foster’s, and are sufficient to visit the defendants with that knowledge.” And the court answered, “ We say that is a question for the jury and not for the court, and we have submitted it to the jury.” Upon this point, in the charge, the court said, “If you are satisfied under the evidence that there was notice, that the telegrams and letters were notice and brought the knowledge to Mr. Berg that the oil was still owned by Foster, and on the [329] payment of the notes would revert to him, your verdict should be for the balance or amount the oil sold for in excess of §10,000. On the other hand, If you think these were not notice — did not convey knowledge to Berg that Foster still retained the ownership of the oil, then your verdict should be for the defendants.” Thus, the writings were submitted to the jury for construction, and the remaining inquiry is' whether such submission injured the plaintiff. If they show that Foster retained ownership of the oil, subject to Berg & Co.’s right as collateral security for 'White’s notes, then the court should so have instructed the jury, and the plaintiff has cause for complaint. The telegrams and letter relating to the ten thousand barrels of oil, explicitly state that Foster had placed the oil to the credit of Berg & Co. as collateral for the payment of White’s note for ten thousand dollars. They inquire by telegram, “Is oil placed to our credit by Foster, ours as absolutely as if we had-made purchase of ’the same?” — and received answer, “ The oil placed to your credit by Foster is as absolutely subject to your order as if you had purchased it.” It is plain that Berg & Co. took the oil as collateral security for the note, subject to their order as if they had purchased it; but upon payment of the note at maturity, the oil would belong to him who gave it as collateral; or upon default in payment and sale of the oil by the holder, the overplus after satisfaction of the note belonged to the owner of the oil. Foster placed the oil and named the purpose; it had been stored in his name, and he transferred it to name of Berg & Co.; the direct and natural inference is that it belonged to him. There is nothing to indicate that he sold or gave the oil to White. Had White been the owner, or had the Union Pipe Company held it in his name, Foster could not have transferred it to anybody for any purpose. In absence of evidence to the contrary, the man who holds a chattel in his own name and pledges it, is presumed to be the owner, and the pledgee is taken to have knowledge that the pledgor is the owner. The writings respecting the second lot of oil are not so explicit ; but it has not been contended that this lot was received on other terms than the first. We are of opinion that the plaintiff’s fourth point ought to have been affirmed. Even if there were sufficient testimony, if believed, to alter or vary the written contract, the plaintiff would be entitled to affirmance of that proposition, though it should be the duty of the court to instruct the jury respecting the effect of such extrinsic testimony. Judgment reversed and venire facias de novo awarded.