Dascomb v. Sartell , 83 Mass. 281 ( 1861 )

Chapman, J.

The plaintiff claims title to the property sued for under an agreement. On the defendant’s part, in the sixth article, her language is: “I agree that Mr. Dascomb may reserve two thirds of the produce or income of the real estate.” On the plaintiff’s part, his language is: (9th.) “ I agree to deliver to Mrs. Sibbell Sartell, on or before the first day of December next, one third of the produce or income of the real estate.” (10th.) “ I agree that the hay, straw and fodder, the whole to be the property of Mrs. Sibbell Sartell.” Taking all these clauses together, the whole of the hay, straw and fodder is plainly stated to belong to the defendant; and it is only the remaining produce which is to be divided, two thirds to him and one third to her. The court can see no latent ambiguity, such as might be explained by paroi evidence. If the plaintiff was unskilful in the use of language, and did not express in writing what he meant, it is his misfortune. A court of law cannot aid him.

But there is another part of the agreement providing that the defendant was to find all the hay that might be needed for the cattle during the year; and this furnishes some reason for believing that, when the contract was made, she understood it as the court have interpreted it, whatever may have been the understanding of the plaintiff Exceptions overruled.