Benson v. Boteler , 2 Gill 74 ( 1844 )

Stone, J.,

delivered the opinion of this court.

The county court having referred to the jury the evidence offered of the facts, that the paper of August 1841, was the agreement of the parties; that is, that the paper was made and delivered by the defendant, and accepted and assented to by the plaintiff; and also, the amount of money to be paid by the defendant to the plaintiff, and predicating their opinion upon the hypothesis that these facts might be found by the jury, proceed in the instructions given to construe the paper of August 1841 as a memorandum of an agreement between the parties for a re-purchase of the same property at the same price it had been in 1835 contracted to be sold by the defendant to the plaintiff, and therefore, that the amount to be refunded was subject to no abatement for the value of use and occupation while held under the first contract.

It is insisted, that by the true construction of this paper of August 1841, it is only an agreement to rescind the contract of 1835, and that when the money paid upon a rescinded contract is sought to be recovered back, an abatement or deduction is to be made from that amount, for the value of use and occupation while the property was held under the contract of sale. It is further insisted, that there was no legally sufficient evidence offered, tending to prove the paper of August 1841 was the agreement of the parties, and therefore, the finding of that fact ought not to have been submitted to the

In construing written instruments, the first and chief object is to ascertain the meaning of the parties, and the intention as expressed, unless contravening some rule of law, is to be carried into effect, 9 Gill §• John. 77. The paper of August 1841, referring to the contract of 1835, to ascertain the amount and designate the property, and declaring an agreement had been made to take back the same property, contracted to be purchased in 1835, at the same amount paid at that time, shows clearly that the first contract of sale was not rescinded, but that a new contract to purchase back the same property at a fixed price had been then made, to take effect from its date. The first contract stood in full force until the agreement of August 1841 was made, and all the rights acquired under the contract of 1835 remained unimpaired up to August 1841. The use and occupation of the property so contracted for in 1835, was a right thereby acquired; he could not, therefore, be liable to the defendant for the value of such use and occupation.

As to the second objection, after the opinion above expressed, it is only necessary to say that the paper of August 1841, being proved to have been signed by the defendant, the possession thereof by the plaintiff and, pursuit of his remedy thereon, was sufficient evidence from which the jury might find it to be the agreement of the parties. The possession of the obligee in a bond is evidence of its delivery, 1 R. fy J. 323. This agreement contains an obligation on the part of the defendant to pay the same amount of money which had been received by him on the contract o/ 1835. It also states the consideration for this obligation. The consideration being the taking back from the plaintiff the property contracted to be sold to him in 1835, the inference is irresistible, that the payment was to be made to the plaintiff; he therefore stands in the same attitude as an obligee in a bond, and it would have been error in the court to take from the jury a fact of which there was evidence legally sufficient offered, 10 G. fy J. 346. Concurring in opinion with the county court, we affirm the judgment. JUDGMENT AFFIRMED.