Jenny Lind Co. v. Bower & Co.
Before: Field
Synopsis
Where an ambiguity in an instrument of writing consists in the use of a word which has a settled meaning, but at the same time consistently admits of two interpretations, according to the subject matter in the contemplation of the contracting parties, it is not such a patent ambiguity as falls within the rule forbidding its explanation by parol testimony. It belongs to that intermediate class of cases which partake of the nature both of patent and latent ambiguities.
In an action concerning a disputed boundary between two mining claims, depending on an agreement between the parties, in which the word “ north ” was used, and parol evidence was admitted to prove that it was the custom of the locality to run boundary lines by the magnetic meridian, and that that was the understanding of the parties : Held, that such evidence was admissible, not to contradict or vary the term, but to ascertain the sense in which it was used.
On a motion for a new trial on the ground of newly discovered evidence, the affidavit of one of the defendants as to what an absent witness will testify, is insufficient. It should be accompanied by the affidavit of the witness himself; if that cannot be obtained in time, additional time should be applied for.
The Court erred in permitting parol evidence of the agreement made by the parties to this action, which was reduced to writing and signed by the parties.
2d. The Court erred in permitting proof of custom which varied the terms of the agreement referred to.
3d. The Court erred in not granting a new trial upon the ground of newly discovered evidence.
Authorities: Chitty on Contracts, pp. 107,109, 80, 81, 106, and 107; 1 Peters’ Rep., p. 591; 1 Greenleaf on Ev., pp. 351, 352, 356, 367, and 377; 1 John. 192; 2 Sumner, 568 ; 7 Yerger, 340; 3 Grattan, 262; 2 Wheat. 316; Doe v. Lea, 11 East. 312 ; 11 Mass., pp. 30 and 31; Wood’s Dig., p. 701, sec. 10.
Hillyer for Respondents.
Ho clear case of a latent ambiguity ever existed.
The evidence excepted to was proof by plaintiffs, offered to show in which sense the parties used this term, by showing: First, the usage upon Forest Hill, generally, in speaking of a course ; Second, a con- . [196]versation between plaintiffs and defendants showing6how they understand it.
The books are full of eases sustaining the admissibility of each of these classes of evidence in similar cases. We shall refer to only a few.
1st. As to usage and custom of the particular district, 1 Greenleaf on Ev., secs. 292 and 295. The author in this last section speaks of the present case at bar — a word having two meanings,- one technical and one common. C. and H., Notes to Phillips on Evidence, part 2, vol. 4, p. 505, part 2, note 954; Ashton v. Insurance Co., 7 Cowen, 202 ; 12 Wendell, 573; 2 Sumner’s Rep. 569. In this case, Judge Story says parol proof may be admitted to ascertain the true meaning of a particular word, or words, in a given instrument, when the word or words have various senses — some common, some qualified, and some technical. 3 Barn. & Adol. 728 ; 4 N. & M. 602.
2d. As to the admissibility of the conversation between the parties to prove their understanding of the term. Waterman v. Johnson, 13 Pick. 261; Stone v. Clark, 1 Metcalf, 380; Birch v. Deipster, 4 Camp. Rqp. 385 ; Gray v. Harper, 1 Story’s Rep. 574 ; Ballenger v. Eckett, 16 Levy & Rowel, 422 ; Selden v. Williams, 9 Watts’ R. P. 14.
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