Yost v. Silvers

REYNOLDS, P. J. (after stating the facts).— Respondents, plaintiffs below, challenge the jurisdiction of this court, claiming that no proper affidavit for an appeal had been filed. The affidavit for appeal is in the following form, after proper venue and title of the cause: “N. M. Pettingill being duly sworn says that he is one of the attorneys for defendant and he says this appeal by defendant is not taken for vexation or delay, but because defendant is aggrieved by the judgment and decision of the court.” It was sworn to before the clerk of the court, and the abstract shows that it was duly filed in court on the 30th of May, 1908, during the term at which the case was tried and the appeal taken. The criticisin' which respondents make of this affidavit is, that it does not show that Mr. Pettingill is the agent of the defend [528] ant, and that instead of stating that affiant “believes” that the .defendant is aggrieved by the judgment and decision of the court, states that it is prayed for “because defendant is aggrieved” by the judgment and decision of the court. This is a very hypercritical objection. Instead of the affidavit falling short of the requirements of the statute and merely stating that the affiant believes appellant is aggrieved, it states affirmatively and unequivocally that defendant is aggrieved. Nor is there any point in the proposition that the affiant does not describe himself as agent but as attorney. That as attorney he was acting as agent for defendant is beyond controversy. The objection is without merit. Turning to the case on its merits, the criticism rests principally on the proposition that the court submitted the construction of the contract as set out in the petition to the jury, instead of construing the contract and declaring the effect of it in law. We have examined the instructions given for plaintiff and defendant and the authorities cited by the parties and cannot agree with this view of it. As we gather it, defendant claims that there was no patent or latent ambiguity in the contract and that it was the duty of the court to construe the contract, and declare its legal effect, and that it was error to submit the construction of the contract to the jury. It is further argued that the instructions given are bad for the reason that they refer to the petition. In support of this last proposition the case of Pandjiris v. Hartman, 196 Mo. 539, is cited. It is true, that in that case, at page 547, Judge Y allí ant says that the instruction there under view was inaccurate in the use of the words “as charged in the petition.” “The jury,” says the judge, “knew nothing about the petition and should not be referred to it. Instead of referring the jury to the petition for the character of the arrest, the instruction' should have informed the jury on that point. The words ‘as charged in the petition,’ should be omitted from the plaintiff’s [529] second instruction.” That does not meet this case, nor does the court there hold that so charging or instructing the jury, is reversible error. It is more a verbal criticism than the determination of a material point. We do not think, however, that the instructions in this case are susceptible of this construction. The contract had been given in evidence and all the court did hy its instructions was to identify it with the contract sued on. While the proposition of counsel, as to the duty of the court to interpret the contract, as a matter of law, is, as a general proposition, correct, it does not meet this case. We have set out the clause of the contract over which the controversy has arisen, and in our opinion, the contract- itself ivas ambiguous as to the date the price lists were to be taken. When that happens, the court may submit to the jury, as a question of fact, which of two or more meanings is to be given to the ambiguous clause. ' This is what the court did, and all that it did, both by the instructions given at the request of plaintiff and by the instructions given at the instance of defendant. We think this question was properly submitted to the jury, and the jury settled it. It was a question of fact, to be determined in this case largely by the construction the parties themselves by their own acts, as also by the circumstances surrounding the execution of the contract, had put upon it. As in any other case, when the question of fact has been found by the jury, and its finding is supported by substantial evidence, we will not set it aside. Upon consideration of the whole case, we think the verdict and judgment are for the right party and that the trial of the case presents no material error against the right of defendant, warranting the reversing of the judgment. The judgment of the circuit court is affirmed. All concur.