Gray v. Harper

STORY, Circuit Justice (charging .iury). It appears to me. that the words of the written contract, “at the cost thereof,” ought to be construed, “all the cost- of the copies,” including the allowance to Mr. Sparks, unless it is clearly made out in the evidence, that the parties, in the use of this language, adopted a different construction, and limited the “cost” to the mere expense of the paper, press-work, and binding. I do not think, that it is absolutely- incompetent for the parties to show, from the conversations between them at the time of the making the contract, what was the sense, in which they then understood the word “cost” as used in the contract, as it is a word capable of a larger or narrower construction according to the sub.iect matter, and the circumstances of the particular case. Those conversations -may be deemed a part of the res gestae, and thus may be referred to, as explanatory of the real intentions of the parties in the use of the word. It appears, however, that the parties at the very time differed as to the very point, whether the money paid to Mr. Sparks ought to be included in the “cost” or not; and there is no evidence to establish in direct terms, how the disputed item was settled between them. If the contract was signed after the dispute, it would go far to show, that the word “cost” ought to include the money paid to Mr. Sparks, since in its general meaning the word “cost” would certainly comprehend that expense. But the learned counsel for the plaintiffs insist, that the contract at the time of the dispute had been actually signed and completed; and if so, then every inference of this sort is repelled. On the other hand, if the contract was not signed at the time of the dispute, it is singular, that the ambiguity should not have been removed by the addition of some explanatory language. The whole point in the argument turns upon this. The plaintiffs say, that “cost” includes all the items of cost, there being no qualifying words to limit the meaning. The defendants, on the other hand, say, that this could not have been the intention of the parties, because the defendants had then purchased all the stereotype plates from the plaintiffs, and consequently could publish complete copies of all the volumes, instead of taking broken series, at the mere cost of the paper, press-work, and binding; and this is certainly true. If the purchase of these volumes had constituted a part of the original bargain for the purchase of the copyright and plates for $6000, then it would be easy to see, that the taking of these copies at the enhanced price of the money paid to Mr. Sparks might have been included. But this construction also is repudiated by the plaintiffs’ counsel, who insists, that the bargains were independent of each other. There is, therefore, great difficulty in arriving at a satisfactory conclusion; and the jury will decide the matter upon a close review of all the circumstances. The jury retired at half past one o’clock in the afternoon, and after remaining together until the opening of the court on the next morning, came in and stated, that they could not agree. The judge, upon their application, gave them some farther instructions, and they again retired. At half past ten o’clock they again came into court, and said, that there was no prospect of their coming to any agreement, and they were then discharged.