Wussow v. Hase

Bardeen, J. Two questions are raised: (1) Is the defendant Hase liable to plaintiff on his bond, for the stock on the premises, purchased by Slensby from plaintiff at the time he went into possession ? "Was parol evidence admissible to enable the court to properly construe the contract of surety-ship ? Concerning the first question there is little ground for debate. Slensby’s engagement was to run the saloon and restaurant business for plaintiff, to purchase all goods thereafter needed in his name, and to pay all expenses and accounts. Hase undertook to save plaintiff harmless from all bills, accounts, or obligations mentioned in the bond. The goods turned over by plaintiff to Slensby are not mentioned. By a fair construction of the bond, Hase was only bound to save the plaintiff harmless from all bills or accounts which Slensby might contract in plaintiff’s name to carry on the business. The first item sued for was clearly not within the terms of his undertaking. [386] As regards the second question, it is clear that any one reading the bond would be unable to identify with certainty just what item included therein was referred to in the exemption clause. No item that Slensby was to pay was specifically denominated rent. True, it appears that Slensby was to make stated monthly payments. Considering the context, the natural inference would be that Slensby was to pay the sum specified for the use of the premises. The evidence offered sets the matter entirely at rest. The court finds that these payments were to be for rent, and there is ample evidence to support it. The plaintiff seems to have so understood it, and his bills rendered to Slensby call for payments of rent. While on the stand as a witness he at first referred to it as rent, but later called it profits. It makes no difference, however, whether it be called rents or profits, if in fact it was rent and was so understood by the parties at the time the bond was drawn. It is argued by plaintiff that parol evidence was not admissible to show what the understanding of the parties was prior to the execution of the bond: That is undoubtedly true, and very much of the testimony received by the court was inadmissible on that ground. But in a trial by the court the admission of improper evidence will not reverse the judgment if there is sufficient competent evidence in the case to support the findings. It is a cardinal rule in the construction of contracts that effect is to be given to all of the language used, if possible. The bond in suit attempted to fix and establish the liability of Ham to plaintiff. He was to pay all bills, accounts, and obligations mentioned, except rent. The words “except rent” must be construed to refer to something Slensby was to pay, else they would be meaningless. In that respect the bond is ambiguous. It is impossible to say with certainty to just what obligation mentioned to be performed by Slensby these words refer. In other words, the subject matter of [387] this exception is not fully identified. In such a case it was the duty of the court to place itself in the situation of the parties to the instrument, by means of extrinsic evidence, in order that the true meaning of the language used might he ascertained. It was also proper to receive evidence to identify the subject matter of the exception. Jones, Ev. § 455; 1 Beach, Mod. Law Cont. § 581. See Hurley v. Brown, 98 Mass. 545. Another aid to the court in ascertaining the fact in doubt was evidence of the acts of the .parties under the contract. "We think the evidence clearly shows that the exception mentioned referred to the stipulated monthly payments to be made by Slensby, and that the court’s findings in that regard must be sustained. By the Court.— The judgment is affirmed.