Ladd v. Abel

Waite, J. The first question, is, whether the plaintiff is entitled to recover one half the avails of the wood cut and sold from the farm. This depends upon the construction of the agreement. The defendant agreed, that he would furnish the plaintiff with “one half of all the produce of the farm,” and if “ one half of the yearly rent and produce” should be insufficient for the support of the plaintiff and his wife, then further supplies were to be furnished. Does the expression “ yearly produce,” thus used, comprehend the wood and timber of the farm, or only such crops as are annually gathered ? The latter obviously must have been the meaning of the parties. Had they intended to comprehend the former, they would naturally have inserted some stipulation, as to the quantity to be annually cut, and not have left the whole business entirely to the discretion of the defendant. By omitting to cut during the life-time of the plaintiff and his wife, he might entirely deprive them of all benefit to be derived from the sale of wood, and save the whole to himself. The evidence upon this subject was properly rejected. 2. Were the declarations of the plaintiff, offered by him in evidence, admissible ? They were not offered as explanatory of any act, nor as part of any res gesta, nor as having been made in the presence of the defendant. Were they admissible, it is obvious, that it would be a very easy matter for a party to make evidence for himself. He has only to make such declarations as he pleases, relating to the cause for leaving, and then call witnesses to prove, that he made such declarations. Upon no principle could they be received as evidence. 3. The next enquiry relates to the -place where the defendant was bound to provide the support of the plaintiff and [520] his wife. By the terms of his covenant, and as a consideration for the conveyance to him, he agreed to pay the plaintiff one half of all the produce of the farm. This the plaintiff had a right to dispose of, at his pleasure. And so long as he required nothing more of the defendant, he had a right to live where he pleased, and as he pleased. But the defendant has entered into a further stipulation. He agrees that if that part of the produce shall be insufficient for the support of the plaintiff and his wife, then he binds himself to furnish them with all necessary food, clothing, house-room, and every thing else necessary to make life comfortable, in sickness and in health. It is only when these extra supplies are required by the plaintiff, that the place where they are to be furnished, becomes material. Where then is the defendant bound to provide this house-room, and these other necessaries 1 At his own house, or wherever the plaintiff may choose to live ? The question is one of some interest to the defendant. The expense of providing house-room and the necessaries that might be required by the plaintiff, at the defendant’s house in Franklin, might be a very different matter from furnishing the same in the city of New-York, or even in the city of Norwich. The defendant, in making the contract, might well suppose, that he could perform it, at the former place, by his own labour and the produce of the farm. But the latter mode, in the course of a few years, might sweep away, not only all the produce of the farm, but its whole value. The parties, when they entered into this agreement, must naturally have had in contemplation the mode in which it was to be executed. Now, at the time when it was made, this court had given a construction to two contracts very similar in their character to the present. Brown v. Brown, 4 Conn. R. 269. Johnson v. Johnson, Id. 407. In those cases, it was holden, that a party obligating himself to provide support for another person, under circumstances very much like those in the present case, was bound to provide that support only at his own dwelling-house. The doctrine of these cases was sanctioned in a subsequent case. Scott v. Hull, 8 Conn. R. 296. There is nothing in the language or character of the pres [521] ent contract, that would justify a construction different from J ' that given in the cases cited. The parties, therefore, may fairly be considered as having made their agreement with reference to the law then existing and established, and applicable to contracts of that character. Besides, the parties themselves have given a contemporaneous construction of their agreement. It appears, that the plaintiff, for a period of more than fourteen years after its execution, continued to reside upon the farm with the defendant. This circumstance furnishes a strong presumption as to the understanding of the parties in relation to the nature and-obligation of the contract. 4. The remaining enquiry relates to the notice to be given to the' defendant, when supplies are required beyond the stipulated rent. It is insisted, on the part of the plaintiff, that the defendant is liable upon his contract, without such notice. Now, the rule upon this subject, both at law and in equity, is, that where a fact affecting the rights of parties, is more peculiarly within the knowledge of the plaintiff than of the defendant, it is the duty of the former to give notice to the latter. Craft v. Isham, 13 Conn. R. 28. 32. Farwell v. Smith, 12 Pick. 88. The wants of the plaintiff, and his expenditures on account of them, were facts peculiarly within his knowledge. To entitle him to recover for such expenses, it was incumbent on him to give the defendant notice of his claim. From his silence, the jury might well infer, that he considered his share of the produce of the farm adequate to his support, and that whatever he expended more, he intended should be from his other means. The case might be different, were he, by reason of sickness, derangement, or other cause, incapable of making known his wants. Then a knowledge of the plaintiff’s situation, would have made it the duty of the defendant to provide the stipulated support. But nothing of that kind is shown, in the present case. A new trial, therefore, must be denied. In this opinion the other Judges «'incurred New trial not lo be granted.