Fore v. Hibbard , 63 Ala. 410 ( 1879 )

MANNING, J. [After stating the facts as above.]

It is evident that the circuit judge acted under the conviction that nothing but real estate and fixtures thereof were conveyed by the mortgage; and that no unattached personal chattels could pass under the general description furniture, as contained in this mortgage. In this we think he erred.

It often happens that extrinsic circumstances are of value in elucidating the true meaning of a contract. ' “The court and jury, in interpreting what the writer meant, must*put themselves, as far as evidence can enable them to do so, in his position,” or, rather, in the position of the parties. 2 Whart. on Ev. 940, and authorities 'cited in note 2. Hence, it was properly shown in this case, by oral evidence, that Eore and Hibbard were partners in the drug and grocery business; that one had sold out his interest therein to the other; that the building which was on the lot mortgaged, was the house in which they were carrying on that business ; and that after the mortgage had been written, it was amended by interlining the word “furniture,” after fixtures, where this latter word first occurred, and the word and abbreviation, “fixtures &e.”; which shows that, without them, the instrument was considered defective.

Now, why was the word furniture added ? If it was intended to mean, as the circuit judge seems to have understood, nothing more than the word “fixtures” imported, it is wholly superfluous. That was expressed already. And we do not usually understand realty, or things appurtenant thereto, as coming under the denomination of furniture. The word relates, ordinarily, to moveable personal chattels. It is very general both in meaning and application; and its meaning changes, so as to take the color of, or be in accord with, the subject to which it is applied. Thus, we hear of the furniture of a parlor, of a bed-chamber, of a kitchen, of shops of various kinds, of a ship, of a horse, of a plantation, &c. The articles, utensils, implements, used in these various, connections, as also those used in a drug or other store, as the furniture thereof, differ in kinds according to the purposes which they are intended to subserve; yet, being put and employed in their several places as the equipment thereof, for ornament, or to promote comfort, or to facilitate the business therein done, and being kept, or intended to be kept, for those or some or one of those purposes, they pertain to such places respectively, and collectively constitute the furniture thereof.

It follows, that when any of the things, which together constitute the furniture of a place, are sued for in the action of detinue, the contract or writing, in which they are described by that general term only, will not, ordinarily, be sufficient evidence by itself to enable plaintiff to recover. The praticUlars must be shown, and identity proved by oral evidence; just as if a man, by his will, were to devise the quarter-section of land on which he was living, oral testimony must be introduced to identify the parcel. In such a case, as has been said before in this court, “It is the instrument which operates: the oral evidence does no more than assist its operation, by pointing out and connecting it with the proper subject-matter. . . - . It points out the precise object to which the instrument is applicable.” — Paysant v. Ware, 1 Ala. 165. And in another case, this court said: “Where a written contract, although complete in itself, contains a term which it is impossible for the court to construe without the .aid of evidence aliunde, it is proper to resort to such evidence for that purpose.” — Cowles v. Garrett’s Adm’r, 30 Ala. 341. _

_ The plaintiff should have been permitted to prove, not what the parties orally agreed should be included in the word furniture, but the things that did in fact constitute the furniture of the building mortgaged, in the use to which it was put of a drug and grocery store.

Let the judgment of the Circuit Court be reversed, and the cause be remanded.