PART IV.

THE INTERPRETATION OF CONTRACT.

CHAPTER I.

RULES RELATING TO EVIDENCE.

§ 1. Proof of document.

STORY v. LOVETT.

1 E. D. SMITH (N. Y. C. P.), 153. — 1851.

Action for conversion. Judgment for plaintiff. Defendant appeals.

Plaintiff claimed to be the mortgagee of the property in question. The mortgage was produced and the mortgagor testified that it had been executed by him. The execution was in the presence of a subscribing witness, who was not called. Defendant objected to this testimony.

WOODRUFF, J. The rule that the execution of an instrument must be proved by the subscribing witness, if there be one living, competent to testify, and within the jurisdiction of the court, is inflexible. The adverse party has an undeniable right to require him who offers the instrument in evidence, to call the person who was chosen to attest the fact of the execution, that he may, by cross examination, elicit all the attending circumstances. The oath of the grantor, obligor, or mortgagor, cannot be substituted. Hollenback v. Fleming, 6 Hill, 303; Henry v. Bishop, 2 Wend. 575; 2 Greenl. Ev., § 569.

It would not be difficult to assign other reasons why the plain

tiff was not entitled to recover on the case exhibited at the trial, but the above is a sufficient reason for reversing the judgment. The judgment must be reversed.1

COLBY v. DEARBORN et al.

Writ of entry.

59 NEW HAMPSHIRE, 326.-1879.

CLARK, J. Both parties claim title to the demanded premises under Kimball C. Prescott. The plaintiff's title is derived from a levy founded on an attachment made June 24, 1873. The defendants are in possession, claiming title under a mortgage, executed by Prescott, February 14, 1873, and recorded February 20, 1873, more than four months prior to the date of the plaintiff's attachment; and therefore if the mortgage is valid, the defendants are in possession under a title prior to the plaintiff's. The plaintiff contends that the mortgage is void for uncertainty in the description of the note secured by it, the amount of the note not being stated in the condition of the mortgage. The consid

1 See N. Y. Code Civ. Proc., §§ 935-937; for typical legislation, see Cal. Code Civ. Proc., §§ 1929-1951; Mass. Pub. St., c. 167, § 21; Ill. R. S., c. 110, § 34.

"The English rule requires that the execution of an attested writing shall be established by the testimony of the attesting witness, or, in case of his death, disability, or absence from the jurisdiction, by proof of his handwriting. Barnes v. Trompowsky, 7 T. R. 265; Call v. Dunning, 4 East, 53; The King v. Harringworth, 4 M. & S. 350; Whyman v. Garth, 8 Exch. 803. In this country the English rule has been closely adhered to in some States, while in others it has been variously modified and restricted. Brigham v. Palmer, 3 Allen, 450; Hall v. Phelps, 2 Johns. 451. It has been held in this State that when an attestation is not necessary to the operative effect of the instrument, proof of the handwriting of a witness who cannot be produced may be dispensed with, and the paper be received in evidence upon proof of the hand of the contracting party. Sherman v. Transportation Co., 31 Vt. 162."- Munson, J., in Sanborn v. Cole, 63 Vt. 590, 593.

"It is an established rule of evidence, and often recognized, that a deed more than thirty years old may be given in evidence without proof of its execution when found in the possession of the party claiming under it, and the possession of the thing conveyed has followed the conveyance.". Stockbridge v. West Stockbridge, 14 Mass. 257; Clark v. Owens, 18 N. Y. 434.

eration of the mortgage is $400, and the condition is the payment of a note of even date with the mortgage, payable in four months from date, with interest. The court received parol evidence showing that the note intended to be secured by the mortgage was a note for $400, bearing the same date as the mortgage, and payable in four months from date, with interest. This evidence was rightfully received. Benton v. Sumner, 57 N. H. 117; Cushman v. Luther, 53 N. H. 563; Bank v. Roberts, 38 N. H. 23; Melvin v. Fellows, 33 N. H. 401; Boody v. Davis, 20 N. H. 140. The mortgage being valid, there must be

Judgment for the defendants.1

O'DONNELL v. LEEMAN.

43 MAINE, 158.-1857.

[Reported herein at p. 100.]

§ 2. Evidence as to fact of agreement.

REYNOLDS v. ROBINSON et al.

110 NEW YORK, 654.-1888.

Action for damages for breach of an alleged contract for the purchase by plaintiff, and sale by defendants, of a quantity of lumber. Judgment for defendants reversed at General Term. Defendants appeal.

ANDREWS, J. The finding of the referee, which is supported by evidence, to the effect that the contract for the purchase and sale of the lumber on credit, contained in the correspondence between the parties, proceeded upon a contemporaneous oral understanding that the obligation of the defendants to sell and deliver was contingent upon their obtaining satisfactory reports from the commercial agencies as to the pecuniary responsibility of the plaintiff, brings the case within an exception to the general rule that a written contract cannot be varied by parol

1 Accord: Wilson v. Tucker, 10 R. I. 578.

evidence, or rather it brings the case within the rule, now quite well established, that parol evidence is admissible to show that a written paper which, in form, is a complete contract, of which there has been a manual tradition, was, nevertheless, not to become a binding contract until the performance of some condition precedent resting in parol. Pym v. Campbell, 6 El. & Bl. 370; Wallis v. Littell, 11 C. B. (N. S.) 368; Wilson v. Powers, 131 Mass. 539; Seymour v. Cowing, 4 Abb. Ct. App. Dec. 200; Benton v. Martin, 52 N. Y. 570; Juilliard v. Chaffee, 92 Id. 535, and cases cited; Taylor on Ev., § 1038; Stephen's Dig. Ev., § 927. Upon this ground, we think the evidence of the parol understanding, and also that the reports of the agencies were unsatisfactory, was properly admitted by the referee and sustained his report, and that the General Term erred in reversing his judgment. It is perhaps needless to say that such a defense is subject to suspicion, and that the rule stated should be cautiously applied to avoid mistake or imposition, and confined strictly to cases clearly within its reason.

The order of the General Term should be reversed, and the judgment on the report of the referee affirmed.

All concur.

Order reversed and judgment affirmed.1

§ 3. Evidence as to the terms of the contract.

a. Supplementary and collateral terms.

WOOD v. MORIARTY.

15 RHODE ISLAND, 518. - 1887.

[Reported herein at p. 430.]*

1 Accord: Westman v. Krumweide, 30 Minn. 313; Blewitt v. Boorum, 142 N. Y. 357 (sealed instrument). See for subsequent parol agreement, Brown v. Everhard, 52 Wis. 205; Homer v. Ins. Co., 67 N. Y. 478. That strangers to the contract may vary or contradict it by parol, see Kellogg v. Tompson, 142 Mass. 76.

2 See also Chapin v. Dobson, 78 N. Y. 74; Naumberg v. Young, 44 N. J. L. 331; Hale v. Spaulding, 145 Mass. 482, ante, p. 487; Van Brunt v. Day, 81 N. Y. 251; Wood Mowing &c. Co. v. Gaertner, 55 Mich. 453; Bradshaw

THURSTON v. ARNOLD.

43 IOWA, 43.-1876.

[Reported herein at p. 515.]

b. Explanation of terms.

GANSON et al. v. MADIGAN.

15 WISCONSIN, 144.-1862.

Action for price of reaper. Defense, non-delivery. Judgment for defendant. Plaintiffs appeal.

Defendant ordered of plaintiffs in writing a reaper, warranted "to be capable, with one man and a good team, of cutting and raking off and laying in gavels for binding, from twelve to twenty acres of grain in a day." Defendant was allowed to testify against plaintiffs' objection that the agent said "one span of horses" such as defendant's would do the work, and another witness (Gunn) was also allowed to testify to the effect that in a sale to him the agent said two horses would do the work. The evidence went to establish that the machine plaintiffs allege they tendered to defendant required four horses to run it.

DIXON, C. J. . . . The word "team," as used in the contract, is of doubtful signification. It may mean horses, mules, or oxen, and two, four, six, or even more of either kind of beasts. We look upon the contract and cannot say what it is. And yet we know very well that the parties had some definite purpose in using the word. The trouble is not that the word is insensible, and has no settled meaning, but that it at the same time admits of several interpretations, according to the subject matter in contemplation at the time. It is an uncertainty arising from the indefinite and equivocal meaning of the word, when an interpretation is attempted without the aid of surrounding circumstances. It appears on the face of the instrument, and is in reality a v. Combs, 102 Ill. 428; Sayre v. Wilson, 86 Ala. 151; Greenawalt v. Kohne, 85 Pa. St. 369. For the special rule applicable to deeds, see Green v. Batson, 71 Wis. 54.