Hawley v. Brumagim

By the Court, Sanderson, J.: We cannot agree with counsel for the appellant as to the construction of thé contract. Its language is not at all ambiguous, but of plain and obvious import. In such a case we can but follow the language of the contract. We are not permitted to insert words not put there by the parties themselves. To do so would be to make contracts, not to read them. The agreement on the part of Peck is not only in terms not “ on or before ” the 27th day of November, 1864, but the agreement on the part of Hawley shows, with all the certainty of a direct statement, that the words “ or before ” were not intended, for it makes it obligatory upon Hawley to keep the stock, or not to part with it, until the 27th of November, 1864. Not only that, but his keeping it until that time is expressly stated as a part consideration for the promise of Peck to make good the deficiency. It would seem to have been the understanding that Hawley should be made sure of getting two hundred dollars a share for the stock, in any event, with the privilege of holding it until the 27th of November, 1864, for a yet- higher market value.

Such being the contract, it follows that testimony offered by the defendant to show that the stock was worth two hundred dollars and over per share in May, 1864, was properly rejected.

There is nothing in the second point made by the appellant. Hawley, as the testimony shows, neither exchanged nor sold the stock prior to the 27th of November, 1864. He [399]surrendered the certificate for the stock which he received from Peck to the officers of the company for cancellation, and took other certificates therefor in his own name; but that was necessary in order to complete the transfer and make the stock his as against third persons. It was not contrary to the contract, hut in keeping with it. Nor did the subsequent cancellations and issues of certificates work any change in the stock itself. The stock remained the same from first to last. Stock is one thing and certificates another. The former is the substance and the latter is the evidence of it.

Judgment and order affirmed.

Mr. Justice Rhodes did not express an opinion.