Gibbs v. People's National Bank

Mr. Justice Hand delivered the opinion of the court: The only question for determination in this case is, did the appellant comply with the terms of the offer of appellee, and thereby become entitled to a deed to the premises in controversy, disincumbered of the lien of the special assessments? A decision of this question necessitates an examination of the offer made by appellee, as set out in its letter of November 19, 1901, to its agent, Clark, and by him submitted to appellant, for the purpose of ascertaining the intention of appellee as therein expressed. That the letter must be examined as a whole and effect given to the intention as expressed by the entire instrument, and not to certain provisions to the exclusion of others, is elementary. (Hayes v. O'Brien, 149 Ill. 403; Street v. Chicago Wharfing and Storage Co. 157 id. 605.) We have carefully examined this offer and considered the same in the light of the authorities cited by counsel, and arrived at the conclusion that considering the entire instrument, and construing all provisions together, the clear intention expressed by appellee in its offer is, that it, in consideration of the sum of §7000 net, would deed the premises to appellee, he to take the same subject to all existing encumbrances and liens and to pay all commissions and expenses of the transaction. That it was to receive §7000 net is reiterated in its letter of December 3,1901. The consideration being §7000 net, it follows, if the word “net” be construed as being used to express its ordinary, common and usual meaning, as is the rule where it does not appear that it was used in any other or peculiar sense, (Royal Templars v. Curd, 111 Ill. 284; Schneider v. Turner, 130 id. 28;) it excludes the appellant’s theory that out of the §7000 net certain special assessments were to be paid. The word “net” is defined by the Century Dictionary and Cyclopedia as “clear of anything extraneous, with all deductions (such as charges, expenses, discounts, commissions, taxes, etc.,) made;” and the American and English Encyclopedia of Law, (vol. 16 —1st ed. — p. 487,) “after deductions made; clear of all charges; free from expenses.” Further definitions are unnecessary. That the above express the word’s well known and usual meaning cannot be denied, and that it would be $5536.86 net, and not $7000 net, that appellee would receive if appellant’s contention was sustained is too plain to admit of argument. The rules of construction insisted upon by appellant' are good law, but they can only be used to assist in arriving at the intention of appellee, — not to force a new and different meaning into its offer. Where an ambiguity appears and the intention is not clear, rules of construction are useful, but where a clear intention appears on the face of the instrument they do not apply. Stettauer v. Hamlin, 97 Ill. 312. Appellant urges that the word “taxes,” used in the offer, does not include special assessments. The person writing the letter was a resident of another State, — a business man, not a lawyer, — and cannot be held to the strict meaning of legal or technical terms, where it clearly appears that he did not intend so to use them, as it does here. In the following paragraph in the offer he uses the words “assessment and taxes for improvements,” showing that he used “taxes” in the same sense as “assessments.” In addition, it can be said that the qualifying sentence 'relied upon by appellee in no way refers to the “other charges” in the offer mentioned, which would certainly include special assessments or any other charge against the lots. As was said in the case of Field v. Letter, 118 Ill. 17 (p. 26): “Greater regard is to be had to the clear intent, when ascertained, than to any particular words which may have been used in the expression of that intent.” “The rule is that the intention of the parties must govern, but that the intention is not to be sought merely in the apparent meaning of the language used, but that the meaning of this language may be enlarged or limited according to the true intent of the parties, as made manifest by the various provisions of the contract considered as a whole.” (Street v. Chicago Wharfing and Storage Co. supra.) We do not think that the offer shows any intention of appellee to pay the special assessments. It appearing that appellant did not accept the offer of appellee as made, he was not entitled to the relief prayed for, and the chancellor properly sustained the demurrer and dismissed the bill. The decree of the superior court will be affirmed. Decree affirmed.