M. Noyes & Co. v. Canfield

The opinion of the court was delivered by Isham, J. The questions in this case arise upon exceptions to a report of referees. The plaintiffs seek to recover damages for a refusal by the defendant to transport about seven hundred tons of pressed hay from Burlington and other ports on Lake Champlain, to the city of New York, according to the terms and provisions of of a written contract, made on the 10th of April, 1852. The question arises, whether the referees erred in admitting parol evidence to show that this kind of property was not included in the provisions of that contract. The contract is in these words, “ The party “ of the first part agrees with the party of the second part to transport in a prompt and business like manner, their freight during “ the navigable season of 1852, between the places hereinafter “ mentioned as follows: — all freight from any port on Lake Champlain to New York at $2.75 per ton.” The contract specifies the rate of compensation which was to be paid for transportation to and from the cities of Boston, New York, Albany, and Troy, and concludes with a stipulation on the part of the plaintiffs, to give the defendant their freighting during that season. These are all the provisions of that contract to which reference need be made for the determination of this case. The request of the plaintiffs, and the refusal by the defendant to transport the hay at the rate per ton as specified in that contract, is found and stated in the report. It is insisted, that the contract and tariff of freight has no reference to property of this character, and that the parties in the use of the words “ their freight” had reference to other articles of personal property for which those rates of compensation were fixed. Por the purpose, therefore, of determining what was meant by the parties in the use of those words, and to ascertain the kind of property to which they referred, parol evidence was offered by the defendant [85] and admitted by the referees, from which, the fact was proved and found, that this kind of property was not intended by the parties to be included in that contract, and that the defendant was under no obligation to transport that hay at the prices mentioned in that agreement. The fact so found is conclusive in the case, provided that testimony was admisible. As a general rule, parol testimony cannot be received to add to, vary, or contradict the terms of a written contract. No evidence can be received which gives to a party the use of other language than that which he has employed. If the words of a contract are clear, and unequivocal, if they import a legal obligation, and there is no uncertainty as to the object or extent of the contract, these words are not to be controverted by the introduction of parol evidence. Under such circumstances, no other words are to be added or substituted for them. Phil. & Am. on Ev. 753. 1 Greenl. Ev. § 275. But whenever any ambiguity arises from extrinsic matters, or when from the language used, the object or extent of the contract cannot be determined, parol evidence is admissible to remove that ambiguity, and ascertain the object upon which the contract was designed to operate. It is a mere rule of interpretation, to find out the meaning of the written words as the parties used them. The difficulty in all cases of this character lies in the application of these general principles. The word “ freight” is a general term, and as used by these parties, has reference to the property or articles to be transported. It embraces every article of personal property which is capable of transportation, whether it is live stock, or merchandise, and whether it is bulky or compact; they may be dangerous articles for transportation and require extraordinary care as a matter of safety, or they may be free from such danger and require but little care in the course of their transit. ' It will include property ordinarily transported by measurement, as well as that usually carried by weight. These are all circumstances which are properly and usually taken into consideration, in ascertaining the rate of compensation. If a carrier has made provision for transporting common merchandise simply, and agrees to carry all the freight of another for a given period, and for a given price, it cannot reasonably be [86] claimed that, on a request for that purpose, that contract would bind the earner to transport live stock, or any property of extraordinary hazardi In such case, there can be no doubt that parol evidence is admissible to show what species of property was meant in the use of that language: in the words as given in Greenl. Ev. § 277, “ the contract may be read by the light of surrounding circum- “ stances, in order, more perfectly to understand the intent and “ meaning of the parties.” The testimony is admissible as explaining the object on which the parties intended the contract should operate and be rendered effectual. Upon that principle, we think, the testimony was properly received by the referees. In Greenl. Ev. §288 the rule is given, “ that if the language of “the instrument is applicable to several persons, or to several “ species of goods, and if the words be general and have divers “ meanings, parol evidence is admissible of any extrinsic circum- “ stances tending to show what person,, or what things were intended “ by the party,” and the word “ freight,” among others, is particularly mentioned as falling within that rule. The adjudged cases fully sustain that rule. 3 Phil. Ev. 1406. Peisch v. Dickson, 1 Mason, 10, 12. Taylor v. Briggs, 2 Car. & P. 525. Birch v. Depeyster, 4 Camp. 385. 1 Stark. 210. U. States v. Breed, 1 Sumner, 159. Bradley v. Washington Steam Co. 13 Pet. 89. Fish v. Hubbard, 21 Wend. 652. Grant v. Maddox, 15 M. & W. 736. The case of Putnam v. Smith, 4 Vt. 622 is an illustration of this principle. In that case land had been conveyed, reserving all the free stone on the land, with the privilege of carrying it off. It was held that parol evidence was admissible to show the situation and quantity of stone on the surface, and that the ledge was not then known to the parties. The testimony was admitted to designate what property in particular, the parties intended the contract should, or should not affect. It must be confessed that in the application of this rule, cases exist, which are difficult to reconcile. But as to the correctness of the principle, the authorities are quite uniform; and of its proper application to this case, we have no doubt. In ascertaining the meaning of the parties in the use of the words “ their freight’” the court “ should be placed, in regard to the surrounding circumstances, “ as nearly as possible in the situation of the party whose written [87] “ language is to be intrepreted.” For that purpose, the evidence offered was admissible, showing the nature, character and extent of the plaintiffs’ freighting for several years previous to this contract ; that the defendant in those years had done the plaintiffs’ transportation under similar contracts and that the defendant was familiar with the plaintiffs’ business, and the kind of property he had had transported. All these circumstances had a tendency to designate the character of the freight, for the transportation of which, the parties were contracting, and to explain their meaning in the use of that language in their contract. The exception of wool, as made in the contract shows that the parties did not intend that articles of a bulky character were to be transported, at the rates mentioned in the contract for freight. The judgment of the county court must be affirmed.