McClelland v. James

Day, J. It will be more conducive of brevity and clearness to discuss in their logical order the. legal propositions raised by the demurrer and urged in the arguments, than to consider the points of the demurrer seriatim. I. As to the admissibility of pa/rol evidence to explain the contract. Appellant insists that such evidence is admissible because of the ambiguity of the contract. He urges that “it will he found difficult, without calling in parol evidence, to answer the following questions: With whom does defendant contract, with Mickey or plaintiff % How is defendant’s one-half interest, that he agrees to take, to be determined ? Hoes he intend to take one-half of the wheat or to share in the profit and loss of the venture ? Was Mickey or plaintiff, either or both of them, [577] a party or parties to the promise of defendant ? Did they or either of them agree that he should have a half interest in Mickey’s contract ? This argument is a felo de se. It concedes, what we think must be admitted, that, if there is any ambiguity in the contract, it is a patent one. Such an ambiguity can never be removed by parol evidence. See 1 Greenl. on Ev., § 297; 2 Pars, on Cont. (5th ed.), p. 557; Jackson v. Sill, 11 Johns. 201. It is true that the circumstances under which a contract is made may be developed for the purpose of arriving at the intention of the parties, when such intention does not clearly appear on the face of the instrument. But the intention of the parties cannot be enforced, unless consistent with the language used. And the intention cannot be ascertained, except in case of latent ambiguity, by bringing forward proof of declarations or conversations, which took place at the time the instrument was made, or before or after. 2 Pars, on Cont. (5th ed.), p. 564, note b. This is what we understand the appellant to claim he is entitled to do. The petition alleges that it was understood and agreed by all parties that plaintiff should deliver to Mickey one-half of the wheat, and to defendant the other half. He claims that this understanding and agreement should be shown for the purpose of arriving at the proper construction of the agreement. It is not claimed that there was any thing in the circumstances or surroundings of the parties which would afford any aid in determining the meaning of_the language employed. To the counts, alleging the Hinder standing of the parties, the demurrer was properly sustained. II. As to the admissibility of the gpa/rol agreement made at the tíme of executing the written contract. The petition alleges that the said Daniel Mickey and petitioner did, at the time said contract was executed, agree with each other and with defendant that he should have, a one578 half interest in said contract, and plaintiff agreed, by parol with defendant, to deliver to him one-half the amount originally agreed to be delivered to Daniel Mickey, and it was then agreed and understood between the said defendant Mickey and petitioner, that Mickey should receive one-half the wheat in said contract, and defendant the other one-half. This averment adds to, varies, or, contradicts the terms of the written agreement, or it does not. If it does not contradict, vary, or add to the written contract, it is wholly immaterial, and the sustaining of the demurrer to it worked no substantial prejudice to appellant. If it does vary or contradict the terms of the agreement, it cannot be proved, and the demurrer to it was properly sustained. Parol contemporaneous evidence is inadmissible to vary or contradict the terms of a valid, written instrument. 1 Greenl., § 275; 2 Pars. on Cont. (5th ed.), 548, and cases cited. III. As to the construction of the contract, a/nd the rights of the parties thereunder. The portion of the contract requiring construction is as as follows: “I, J. "W. James, agree to take a half-interest in Daniel Mickey’s contract of the above article.” Appellee claims that this constituted James and Mickey partners in the venture of buying 1,000 bushels of wheat. It seems to us that they are to be treated as joint owners of the wheat, James being bound to take one-half of the wheat, and to pay therefor the original contract price. It may be conceded that James and. Mickey «could not thus divide the contract, and impose 'upon McClelland the duty of delivering 500 bushels to each of them, and make him liable in separate actions to each for a failure. And, as the obligation of a contract must be mutual, it may be that McClelland could not tender 500 bushels to one of the parties and recover of him damages for a refusal to accept. [579] But it is alleged in tbe petition, that Daniel Mickey, having agreed to let James have a half-interest in the contract, assigned his remaining interest to the plaintiff McClelland. The plaintiff, thus becoming possessed of Mickey’s interest in the contract, is released from his obligation to furnish Mickey any grain. But he takes Mickey’s contract, subject to Mickey’s agreement, to let James have 500 bushels of wheat. This condition he is under obligation to perform, and upon failure to do so would be liable in damages at the suit of James. If he is thus liable upon the contract, he may enforce it. It is competent for him, therefore, to tender the 500 bushels of wheat to James, and, upon his refusing to accept, to maintain an action for the damages occasioned. TTpon the counts of the petition, alleging an assignment of Mickey’s contract to McClelland, and the tender to James, the plaintiff was entitled to recover, and the demurrer thereto was improperly sustained. Reversed.