Hutchinson v. Chicago & Northwestern Railway Co.

Ryan, C. J. The counsel on both sides agree that this is an action on the instrument set forth in the complaint, and we agree with them. How that accords with some of the positions of the parties in the court below and in this court,' we need not stop to inquire. The court below, on the prayer of the appellant, charged the jury that the contract is an ex parte contract; in legal effect an offer of the respondent to give the right of way on the terms stated, not binding the appellant or making it liable for violation of its terms. If that be so, it is difficult to understand on what ground the,court below sustained the action or upheld the verdict for the respondent. Contract, ex vi termini, implies concurrence of parties; and — 601 — the term does not seem to have been very accurately used. An offer, unaccepted, is not a contract, because it is ex parte. When accepted, it ceases to be an offer and becomes a contract. If the offer be in writing signed only by the party making it, and is merely accepted, not signed, by the other party, it becomes what civilians call a unilateral contract, binding both parties. And we are able to gather that, by the somewhat novel term “ ex parte contract,” the court below intended a deed poll, anciently called charta de una parte. And we understand the instructions in question to rest on the doctrine, not yet wholly abandoned even in this country, that when a grantee does not execute the deed he accepts, he may be bound by the terms of an indenture, but not by those of a deed poll. Giles v. Pratt, 2 Hill (S. C.), 439. Very strict lawyers cling to a doubt whether a party ought to be bound by the terms of a deed which he does not execute, even by indenture. Platt Cov., 10-18. But Mr. Platt’s learning compels him to admit that the doctrine is well established in England, that acceptance of an indenture binds the grantee without execution. The doctrine is also accepted in this country. See the well considered case of Finley v. Simpson, 2 Zabr., 311. And the question is not an open one in this court. Vilas v. Dickenson, 13 Wis., 488; Bishop v. Douglass, 25 id., 696; McClellan v. Sanford, 26 id., 595; Lowber v. Connit, 36 id., 176. A deed poll may run in the third person as well as in the first (Shep. Touch., 51); and an indenture in the first as well as in the third. Oo. Litt., 229 b, 230 a. The only real difference in form is, that an indenture purports to be the deed of both or all parties to it, and a deed poll the deed of the grantor only. So of old an indenture was written in counterparts, one for each party, all correspondingly indented, for the purpose of identification; and a deed poll, in one part only, cut evenly or polled, without indenture. Shep. Touch., 50. And the mechanical process was essential to an indenture; for “ it may be — 602 — an. indenture without words, but not by words without indenting.” Co. Litt., 229 a. And it was held that an indenture was the deed of the grantee, though not executed by him, because he accepted it importing to be sealed by him; but that acceptance of a deed poll did not bind him, because it did not import to be sealed by him. Co. Litt., 229 a, 280 b. There were once meaning and purpose in these distinctions, puerile as some of them now seem; but the names have long survived all useful sense. In our conveyancing, these subtleties are practically obsolete. Our common deed of conveyance is never indented or executed in parts; and is not an indenture, though it so calls itself and imports execution by both parties. It is universally executed and dealt with as a deed poll. And sometimes a deed poll is substituted for it, without question of difference in law, as there is none in fact. And this court has given the same effect, as ought in reason to be given, to acceptance of deeds poll as to acceptance of indentures, without pausing to weigh subtleties of distinction which died long ago out of the practical business of American life. See cases cited supra. In the case before us, the appellant accepted the instrument and registered it; entered under it, and claims to have complied with its terms. This is, in effect, the appellant’s answer. It would be strange if it could accept the grant, freed from the provisions qualifying the grant; take the estate, without the limitations of the estate; claim under the contract, without being bound by its terms. The appellant took its right cum oncre; and, by accepting the instrument, bound itself as much by the terms of the contract, as if it had sealed it. We say as much bound, without referring to the form of obligation or to the distinction recognized in Bishop v. Douglas.. What would have been the relations of the parties, had the appellant avoided the respondent’s premises, or undertaken to secure the right of way over them under its charter, we need — 603 — not consider. It 'did neither, but entered and constructed its road under the contract. By the terms of the contract, the appellant toolc the right of way, bound to the respondent that its railroad track should not interfere with or injure the structure which sustains his mill dam, and should not run nearer than seven rods from the east line of his grist mill. Questions are made on the construction of these agreements, which are not free from difficulty. The respondent’s dam does not appear to be sustained by any other structure. There is a wall which is evidently a part of the dam, and cannot properly be regarded as a structure which sustains it. Presumably it sustains the earth-work, and the earth-work sustains it: both mutual parts of one whole. The terms of the contract would apply equally to each, and properly to neither. All surroundings show that the wall is not the structure intended. The term “ mill-dam ” implies an artificial structure. Jackson v. Lawrence, 11 Johns., 191. One structure may sustain another: as a pedestal, a pillar; and the pillar, a portico; and the portico, a pediment: ail perhaps, in legal sense, parts of one structure, merged in the building to which they appertain. But it is difficult to comprehend how any separate structure can sustain a mill-dam, which appears to imply a necessity of resting on the bed of the stream dammed, self-sustaining, and incapable of receiving support from any structure not essentially a part of its own structure. Structures in a dam may give it strength; structures added to a dam may increase its strength; but all such seem of necessity to be component parts of the structure of the dam itself. Here, certainly, there does not appear to be any other. A house may be built on an independent trestle pr other separate underpinning; or on a bridge, as happened in Janes-ville ; or on a scow afloat, as suggested by Cooper. Then, if a writing should mention the structure which sustains the house, the meaning would be apparent. But if a house be built with — 604 — stone walls whose foundations rest directly in the solid earth, and an instrument speak of the structure which sustains the house, what should be understood ? There is no structure but the house itself. Several structures in detail may have gone to its construction, serving to support each other and the whole; but all are merged in the one structure of the house. And it appears to us that the house itself would be the structure intended : the only construction which the words would admit, and one which they would admit, because such a structure sustains itself, and is sustained by no other. And so of this mill-dam. The dam may be composed of several works in detail which go to sustain each other, and together to sustain the whole; but they are all parts of the dam, tending to make it a self-sustaining structure, and all parts of the structure which sustains the dam: the word structure being used in the sense of construction. And so the dam itself is the structure which sustains the dam. ■ Another view of the phrase, not without great weight, leads to the same conclusion. Back-water is the object of a mill-dam : the dam mere means to that end. So, by a familiar metonymy, the cause and the effect, the means and the end, are indifferently used to signify each other. Thus, in common speech, a reservoir often signifies the water kept, not the structure in -which it is kept; and a dam signifies the pond, and not the obstruction by which the pond is held. So we sometimes hear of fishing or bathing in a dam ; and often of the water in a dam, meaning in the pond. So a pond is made to include the dam, even in judicial phrase. Jackson v. Vermilyea, 6 Cow., 677. And grant of a dam is held to include an easement in the pond. Maddox v. Goddard, 3 Shepley, 218; Sabine v. Johnson, 35 Wis., 185. And a finding of the height of water in a pond is equivalent to finding the height of the dam. Aken v. Parfrey, 35 Wis., 249. Our statute on the subject, from 1840-to this day, has always been entitled “ Of Mills and Mill Dams ” only, though its chief relation — it might almost — 605 — be said its sole relation — is to mill ponds, and not to mill dams. And so it may well have been that the structure which sustains the mill dam, here, was intended to signify the structure of the dam which supports the mill pond. There is apparently nothing else for it to mean, and it can mean that. The dam, of itself, is probably of little or no value. The value is in the pond. The respondent was caring for the integrity of his property ; and, by a not rare misuse of words, confused the means and the end. And this seems to be a fair, rational and probable construction of the respondent’s intention in the use of the phrase, perfectly according with our construction of the phrase itself as it stands in the contract, otherwise unintelligible. It is always the duty of all courts to give construction to all contracts, if it can be done, ut res valeat. We are to avoid ambiguities, when we are able, by finding and giving effect to the intent and meaning of parties in the language of their contracts. And we have arrived at this -construction of the language of this contract, not without difficulty, in order that the contract may have effect without doubtful and dangerous recourse to parol explanations, as in Ganson v. Madigan, 13 Wis., 67. So we hold that the appellant’s acceptance of the contract bound it, in legal effect, by a provision that its railroad track should not interfere with or injure the structure of the respondent’s dam. The other question of construction is of much less difficulty. There are on the respondent’s premises two mills, lying easterly and westerly within a few feet of each other. The westerly is constructed and used, with bolting apparatus, to grind wheat; the easterly, without bolting apparatus, to grind coarse grain: both for customers bringing their own grain to be ground for their own use. And it is contended that the mill for coarse grain is not a grist-mill; that the contract has relation to the wheat mill only. We understand the popular sense of the term “grist-mill ” — 606 — to be, a mill which grinds grain taken to it to be ground for the owners for toll; grain so taken being popularly called a grist. We do not understand either term to be popularly restricted to any kind of grain. And these popular meanings accord with the definitions in Webster’s and Worcester’s dictionaries ; with the definitions in the English dictionaries of the word “ grist,” and with the definition of the term “ gristmill,” in the Imperial, the only English dictionary in which we find it. And they are confirmed by the etymology of the word “ grist,” which all the authorities appear to refer to grain taken to be ground, and not to the process or production of 'grinding. Wedgewood, Johnson, Webster, etc. In critical and popular sense alike, we take any mill which grinds any kind of grain which people take there to be ground for themselves, to be a grist-mill. We therefore' consider both of the respondent’s mills tobe grist-mills. And the question arises, whether, the fact appearing that there are two mills, it can be determined by the contract itself to which of the two it relates. We think it can. There is no positive intendment in the contract that there is only one grist-mill of the respondent; but only that there is one. Yet it gives an impression that there is but one. And, on the assumption that there is but one, when the contract provides that the track shall run not nearer than seven rods from the eastern line of it, there is a fair intendment that the track shall run eastward of it. The purpose is to fix a safe distance of the track from the mill; and it would be an unreasonable construction of the contract, that the track might run nearer on the west than on the east of it. When a measure for one object is taken from one side of another, it naturally — almost necessarily — implies the position of the first object to be on that side of the second. Men do not measure from the east line of a building or lot or highway, to fix the location of an object on the west side of it. Had it been the intention of the contract that the track might run on any side — 607 — of the mill, it would have said seven rods from the mill, not seven rods from the east line of it. And if there were but one mill, we should be inclined to hold that the contract requires the track to run eastward of it. And when the locus in quo shows two grist mills, it appears to us not only to disclose a latent ambiguity, but also to solve it. For, if the contract be to run seven rods eastward of one mill, and there are two within its terms, it is in effect a contract to run seven rods to the eastward of the eastward mill. If the track should run beyond seven rods from one and within seven rods of the other, it would be in violation of the letter and spirit of the prohibition. And it would be a wildly unreasonable construction, that the track might run west of the westerly mill as near as seven rods to the east line of the easterly mill, when it could not run east of the easterly mill nearer than seven rods. Before it appears that there are two grist mills, and a fortiori after, it is the fair intendment of the contract that the track should run at least seven rods east of the east line of the nearest mill. It would be trifling with the interest and object of the restriction, a mere play upon the words of the contract against its sense, to hold otherwise. Perhaps this view of the contract on its face may be somewhat confirmed by the shape of the two mills as seen on the plat in the record. The easterly mill appears to be one rectangular parallelogram, with an unbroken easterly line. The westerly mill is of the shape of two joined together, with two easterly lines. And it might be further confirmed by the fact in evidence, that the line surveyed and proposed, before the contract, was eastward of both mills. But the terms of the contract as written, applied to the premises as they are, need no aid from extrinsic facts. And we hold that the appellant’s acceptance of the contract bound it to run its railroad track not nearer than seven rods from the east line of the respondent’s easterly mill. Subject to these two provisions, the contract vests the appel — 608 — lant with full right to locate and construct its .track over the respondent’s premises, without other limitation or condition. The respondent pleaded for breaches, in effect, that the railroad track built by the appellant under the contract interferes with and injures the structure of the dam, and is nearer than seven rods to the east line of the easterly grist mill, by which the value of the dam and mill is lessened. The issue was a simple one, and the rule of damages simple: the amount of direct injury to the respondent’s property by the appellant’s breach of the contract. On the trial, a great mass of parol evidence was admitted to explain the contract, much of it inadmissible in any case, and all of it irrelevant in this; sometimes hard to be distinguished from evidence to other points, and tending, with other things, to confuse the trial and the record. But as all of it, perhaps, looked to the true construction of the contract upon its face, the principal error in this respect seems to have been in leaving to the jury what the court should have ruled for them. So far as the contract is concerned, it does not appear to have misled the jury; and perhaps most of it was merely irrelevant and harmless. We have more doubt about the admission of contracts of the appellant for right of way over other premises in the vicinity, offered for the purpose of explaining the respondent’s contract. They were probably inadmissible for any purpose. What they were, or how they might have tended to influence the jury, does not appear. The court below refused to instruct the jury that they had no bearing on the case, and that the respondent’s contract must be construed as written ; and gave no instructions restricting their effect as evidence. This would make us cautious in upholding the verdict. But, except upon the point of explaining the respondent’s contract, it may be that they are not within the rule of exception. Bonner v. Home Ins. Co., 18 Wis., 677; Chapman v. R. R. Co., 26 id., 295; Mead v. Hein, 28 id., 533. We confess that we are unable to'understand ,on what view — 609 — of it the court below sustained the action. In the admission and exclusion of evidence, the rule seems sometimes to go upon the contract, and sometimes upon damages for taking the right of way under the appellant’s charter. We have the same difficulty in understanding the theory. of the case on which the charge to the jury was intended to rest. The charge expressly instructed the jury that the appellant is not bound by the contract and not liable for violation of it. And yet it sets out by stating the contract and its provisions, and generally follows its terms and the alleged violations of them ; and at the same time sustains grounds of damages not appearung to arise under the contract, and seeming to arise from the taking, outside of the contract. There appears to us to be much inconsistency in the charge. As DIXON, C. J., says in Hopkins v. Langton, “ the marvel is that the jury should have known anything about the law; the strong probability is they did not,” as the court below intended that they should. We cannot say that we do. It appears to us that some peculiarities of the case, leading into a great deal of irrelevant testimony, presented de novo i'n the hurry of a trial, involved the case in confusion, and that the views taken of it by the learned judge of the court below not unnaturally vacillated somewhat on the nature and scope of the action. Under such circumstances, it was nearly impossible for the jury to give a safe verdict. And we are inclined to think that this of itself would be sufficient ground to reverse the judgment. Ward v. Henry, 19 Wis., 76; Sears v. Loy, id., 96: Imhoff v. R. R. Co., 20 id., 344; Hopkins v. Langton, 80 id., 379; McCabe v. Hammond, 34 id., 590. But we prefer to rest our judgment on the rule of damages given to the jury. On that subject, the charge sets out by stating, in effect, that the respondent’s damages are the amount of depreciation in value of the property by reason of the appellant’s breach of contract. Had the charge rested there, it would have been unexceptionable. Snyder v. R. R. Co., 25 — 610 — Wis., 60. But from tbence the charge seems to us to wander inadvertently from the rule and misapply it. The rule in Snyder v. R. R. Co. is, that the measure of damages is the actual depreciation in value as established in evidence, exclusive of all remote, fanciful or speculative injuries; but that, in order to account for and support their opinion of depreciated value, the witnesses who prove it may be permitted to state all causes of injury which they believe go to make up the depreciation to which they testify. But these do not go as evidence to the jury to assess damages upon, but only as means by which the jury can estimate the value of the evidence of depreciated value. This is not distinction without difference; it is a practical and important one. The witnesses who are permitted to state the grounds of their judgment, are subject to cross examination, and their judgment to criticism ; there is some safety in permitting them to speculate on the causes of depreciation. But to admit evidence of remote and conjectural sources of injury for the jury to consider and assess damages upon, without re-, straint or scrutiny, would be going outside of all safe rule, and plunging into the abyss of wild and supposititious damages. We think that Snyders Case went fully as far as it is safe to go : farther, perhaps, than they go elsewhere (Presbury v. R. R. Co., 103 Mass., 1; S. & R R. R. Co. v. Hummell, 27 Pa. St., 99); and we are not disposed to go beyond it. Witnesses may testify to depreciation and be permitted to state the grounds of their opinion, as in Snyder's Case ; but evidence of remote and conjectural causes of depreciation should not be submitted to the jury as a basis for their assessment of damages. This was expressly done in the charge of the court below in the present case. And we think that the jury may well have understood that they were at liberty to assess damages for such causes, over and above their o wn estimate of actual depreciation. The passage in the charge relating to the mill rests, perhaps, ou their estimate of actual depreciation. So, perhaps, does the passage relating to the barn, though it does not appear that the — 611 — barn is affected by breach of the contract or is proper subject for damages. So, perhaps, does the passage relating to the dam, though including very conjectural sources of damage. But the concluding passage of the general charge, that danger of fire, or liability of horses to be frightened, or inconvenience arising from proximity of the track, are not such injuries as will authorize separate and distinct damages, being too remote, was, we cannot but think, well calculated to mislead the jury, even beyond the rule of the court below that the jury were the judges of depreciation from such causes. An ordinary juror would be very apt to infer that, though he could' not assess separate and distinct amounts of damages for each of such causes, he might allow for them all in the aggregate damages assessed. And we cannot think that the mischief was certainly cured by the closing remark, that if these things depreciate the value of the property, the depreciated value may be assessed. The failure of the court below to give any positive and unqualified instruction that such consequential and contingent sources of injury are in themselves too remote for damages, leaves us in some doubt, as we think the jury must have been, what is the precise doctrine of the charge upon this subject. In any view of it, the charge plainly went beyond the rule in Snyder v. R. R. Co. And we may add that the verdict gives assurance that the jury were misled as to the proper rule of damages. On the whole case, we are quite clear that justice requires that there should be another trial of this cause. By ike Court. — The judgment of the court below is reversed, and the cause remanded for a new trial.