Mississippi River Logging Co. v. Wheelihan

Marshall, J. It is conceded that the language of the covenant of warranty, as contained in the deed, taking the clause as a whole without supplying any words by presumption, is meaningless. The respondent covenanted that the grantee in the deed, “ his heirs and assigns, in the quiet and peaceable possession of the demised premises against every person claiming any part thereof, by, through, or under- and no other-will forever warrant and defendP The learned counsel for the appellant contends that the court should, in effect, add to this clause the word “ them ” after the word “ under,” and “ they ” after the word “ other,” and thereby give meaning thereto. Counsel for the respondent contends that all that part of the covenant after the word a thereof ” should be suppressed as surplusage, leaving what would thereby remain a plain, general covenant for quiet enjoyment. The learned circuit judge adopted the former theory, which in effect held tha-t the clause constitutes a limited covenant against the acts of the grantors. [98] The question presented is one of judicial construction, requiring the application of some well-established rules, all coming down, however, to this: That the intention of the parties to a contract must govern, such intention to be determined from the words they see fit to use; that, in cases of uncertainty arising from such words, resort may he had to the situation of the parties and the circumstances of the making of the contract; provided, however, that the court cannot give effect to the intention, however manifest, which plainty violates the rules of language or of law. 2 Parsons Cont. 494; Braun v. Wis. Rendering Co. 92 Wis. 248. The foregoing rule does not allow the addition of words to a contract unless obviously implied. Where the language is plain and unambiguous, the apparent import of the words must govern. Story, Cont. § 780. But if the words are uncertain, such meaning, within the limitations stated, should be adopted as will best effectuate the intention. “ But words should not.be constructively put into the contract that are not there.” Parkhurst v. Smith, Willes, 327; Chitty, Cont. (11th Am. ed.), 106. Prof. Parsons sums up the rules thus: ‘ They do not require that the court shall always construe a contract to mean what the parties meant, but that it should give to the contract such construction as will bring it as near to the actual meaning of parties as the words they see fit to employ, when properly construed, and the rules of law, will permit.’ 2 Parsons, Cont. 494. On the particular point here presented he says, “ if a blank be left in an instrument, or a. word or phrase of importance omitted by mistake, the omission may be supplied, if the instrument contains the means, of supplying it with certainty, otherwise not.” Id. 563. It is obvious that some word or words were by mistake-omitted from the instrument sued on, which renders the meaning of the covenant uncertain, but we cannot say that such instrument furnishes the means of supplying them with certainty. Therefore it is not within the office of judicial [99] construction to remedy the omission, and thereby save the parties from the consequences of the mistake. The remedy, if any exists, is by a direct proceeding to correct the mistake. Braun v. Wis. Rendering Co. 92 Wis. 245; 2 Parsons, Cont. 496. Notwithstanding what has preceded, we are unable to hold with counsel for appellant that the warranty clause should be split up by rejecting that part only in which the omitted words occur. While the rule is that every part of a contract should be given force and effect if possible, and, if the meaning of the language of a part only is necessarily uncertain, such uncertain part must be suppressed, and effect given to the balance (2 Parsons, Cont. 505; Riggin v. Love, 72 Ill. 553), if thereby the intention of the parties can be effectuated, yet if the uncertainty grows out of the omission of words which cannot be constructively supplied and that affect the whole clause, evidently designed for a particular purpose which is rendered uncertain by such omission, then the whole clause must be suppressed. Applying the foregoing to this case, we must hold the whole clause upon which plaintiff bases his cause of action uncertain beyond the power of the court to remedy by judicial construction, and that the demurrer was properly sustained. By the Oowrt.— The order of the circuit court is affirmed,