Warren v. Merrifield , 49 Mass. 93 ( 1844 )

Shaw, C. J.

This is a special action of assumpsit, for breach of the defendant’s promise, in not delivering to the plaintiff a promissory note for a quantity of timber delivered to the defendant on or before the 1st of July 1842, pursuant to contract. It appears by the exceptions, that on the 1st of July 1842, the quantity of timber delivered • by the plaintiff, at the stipulated prices, did not equal the value of the land at the price agreed, and the question is, whether at that time there was any breach, on which this action will lie.

It is certainly difficult to put a sensible construction on this contract, and understand what the parties ultimately meant It was originally obscure, and is rendered still more so by interlined alterations, and there are some clauses which, in consequence of such alterations, are inconsistent, and cannot be reconciled with the rest of the instrument. In construing every instrument, we are to look at every part of it, to construe the language m the sense in which it appears that the parties understood it, and to ascertain, if possible,‘their intention ; and such intention, if it can be ascertained, must govern.

One good rule of construction, we think, is peculiarly applicable to a case like the present, where there have been considerable alterations, and where there are particular clauses not easily reconcilable with each other, and it is this; to read the whole instrument through, and, applying it to the subject matter, to ascertain the leading scope and purpose of the parties in making the contract; and when there is a difficulty in carrying out all the details, as contemplated by particular clauses, to construe all such particular clauses so as best to promote and accomplish the primary and leading purpose of the contract.

In looking into this contract, we think the leading and primary purpose of it was an exchange of a quantity of timber at fixed prices, for a tract of land at a fixed price, and the payment of the residue in cash notes on time. Originally, there was a stipulation in regard to the time of the delivery of the timber, (the 1st of July,) and the consequent acts of giving a deed of the land, and notes for the balance, were fixed accordingly; but this was subsequently altered by interlineations. It is obvious, however, that all the alterations were not made to correspond with such principal alteration; so that some of the clauses became irreconcilable. But we are of opinion, from the whole scope of the contract, that the primary purpose of giving the land for the timber, as far as it would go, was not changed by this alteration. Originally, the parties contemplated a delivery of the timber so fast, that by the 1st of July the quantity could be ascertained, and two notes for the balance be given. There the balance plainly meant the amount of cash which would be due for the timber, after applying the lands. But by the alteration, the time for completing the delivery was enlarged to the 1st of September. Then, instead of the provision for a note for half the balance, to be given on the 1st of July, as the amount might not be then ascertained so as to fix the balance, the stipulation was, that a note should be given for all delivered by the 1 st of July. But the question arises, all what ’ The minds of the parties were upon the mode of paying the cash balance. The stipulation for a conveyance of the land, to operate as payment pro tanto, still remained. The provision still remains for a note for the other half of the balance, which would be absurd if the first note were not to be given as part of the balance. The words, “ other half,” cannot be applied literally after the alteration; because there remained no provision for the payment of one half; but we think it must be understood to mean the “ other part,” or remainder of the balance. This affords a clear implication, that the first note was for the cash balance.

On tne whole, the court are of opinion that this stipulation, to give a note on the 1st of July for all then delivered, must be construed to be all the cash balance, after applying the land; and that this construction will best carry into effect the intent of the parties, as expressed in this instrument. Any other construction might strike out, or render nugatory, the important stipulation for a payment pro tanto for the timber by a conveyance of land, and would also render the stipulation for the payment of the “ other half ” of the balance absurd. As the value of the timber, delivered on the 1st of July, did not equal the value of the land, there was no cash balance due, and the obligation to give a note was not broken.

Exceptions overruled.