McAlpine v. Foley

Gilfillan, C. J. Plaintiff, on June 19, 1883, executed a bill of sale to defendants, describing the property as “all my entire possessions at Grand Eapids, including the certain household furniture and all paraphernalia thereunto belonging to said house; also six lots in No. 27;112 lots in block No. 5; also one flat-boat, one span of horses, one wagon, one tote-sled, one pung.” The sale was for a gross price. At the time plaintiff kept a hotel at Grand Eapids, and also kept a saloon across the street from the hotel. In the saloon he had a quantity of liquors, which he claims to have sold to defendants at a subsequent sale, to wit, on June 26th, and for the price of which this suit is brought. There is sufficient evidence to sustain the judgment for plaintiff, unless, as claimed by defendants both here and by seasonably raising the objection in the court below, the liquors passed by the bill of sale, so that oral evidence of a contrary intent would be inadmissible. The phrase “all my entire possessions,” taken without any qualification, would, of course, carry the liquors. So it would carry everything else that the plaintiff possessed, even the clothes on his back, his personal ornaments, or pictures, if he had any, of his wife and children, and the material for his next meal. It is hardly reasonable to suppose, from the use of so general terms, that the parties meant such articles to pass — in other words, that they used the phrase in its broadest sense, although we might be obliged to give it that meaning if there were nothing else in the contract to qualify it. We naturally seek to find a qualification in the contract; and the qualification or limitation is there. A general description of the subject may be restrained by a more particular description in the same contract. Broom, Legal Maxims, 646; 3 Washb. Real Prop. *629; Thorpe v. Thorpe, 1 Ld. Raym. 235; Wood v. Rowcliffe, 6 Exch. 407; Moore v. Magrath, 1 Cowp. 9; Barneys. Miller, 18 Iowa, 460. This is especially the rule where the general description is indefinite, or such [253] as to suggest the idea that the parties could not have used it with its fullest and largest meaning. As said by Lord Mansfield in Moore v. Mngrath: “It is very common to put in a sweeping clause, and the use and object of it in general is to guard against any accidental omission; but in such cases it is meant to refer to estates of the same nature and description with those that have been already mentioned." It is very clear that the parties did not intend this sweeping clause to carry everything possessed by plaintiff. For instance, it specifies one flat-boat, one span of horses, one wagon, one tote-sled, one pung. Only one each of these several articles could' pass, no matter how many he may have had. We cannot suppose the particular description was intended to enlarge the general one, — to add something to it, — but rather as intended to render it more definite and certain by specifying particular articles and classes of property as intended to< pass. A stock of liquors is not suggested by anything in that particular description. It was therefore proper to prove by parol a sale of the liquors at a subsequent date. The questions asked by defendants of plaintiff and the witness Barrett come within the rule laid down in Austin v. Robertson, 25 Minn. 431. It did not appear that the answers would be material; and in such case, if the questions are objected to, the party asking them must state that he expects to prove by them something material. There is nothing in the other points made by appellants. Judgment affirmed.