Hunting v. Emmart , 1881 Md. LEXIS 35 ( 1881 )

Bowie, J.,

delivered the opinion of the Court.

The question presented by this appeal is, the proper construction of the acceptance of a draft drawn by Messrs. Locke & Conway, in favor of the appellees, on the appellant, and accepted by him.

At the trial below, the appellees (being the plaintiff's) produced and proved by competent evidence, the draft, and acceptance, and endorsement on the draft, of the tenor and effect following, viz.,

Baltimore, July 25th, 1877.

E. B. Hunting, will please pay to Emmart & Quartley, twenty-five hundred and eighty-three dollars, to be taken from amount of purchase money of the house purchased by you, when they have entirely completed their contract, dated June 18th, 1877.

$2583.00. Locke & Conway.

Across the face of the foregoing draft is the following, to wit:

“'Accepted: payable when due under the contract, out of the purchase money.

“Baltimore, July 26th, 1877. E. B. Hunting.”

Subsequently there was endorsed on the back of the foregoing draft the following, viz.,

“ The contract of Emmart & Quartley, dated June 18th, 1877, for painting, glass and glazing of nine houses on North Boundary avenue, is completed to our entire satisfaction, according to their specifications.

“Baltimore, February 16th, 1878. Locke & Conway.”

The execution of which was also proved.

The appellees further proved by competent evidence, the original contract, between the drawers and payees of the draft, dated the 18th June, 1877, for painting and glazing nine marble front houses on Boundary avenue, and the completion of the work as therein stipulated, and that before the contract was entered into/ the drawers of the draft had offered to secure the drawees, by a draft on the appellant; who, was waited on by the foreman of the appellees, to know whether he would accept it, and did accept it in the form aforesaid, and delivered it to the foreman, who delivered it to the appellees.

That during the prosecution of the work, the appellant, being requested to make some advances on his acceptance, refused, but said he would pay when the work was done, that he urged the appellees to complete the work, the sooner it was done, the sooner they would get their money; that after the work was completed and certified by Locke & Conway, as aforesaid on the draft, the appellant promised to pay the draft after a short time, etc., and finally he refused, saying he had a contract with Locke & Conway, and he owed nothing under the contract.

On cross-examination, the witness admitted having given the following receipt:

Baltimore, July 26, 1877.

Received of E. B. Hunting his acceptance of Locke & Conway’s order of $2583, payable when due under the contract, out of the purchase money of $4500.

Emmart & Qtjartlet,

jper Anderson.

Witness said, that when the defendant drew this receipt, and handed it to him for his signature, he told defendant, it was unusual and unnecessary to give a receipt for the acceptance of a draft; defendant replied it was necessary .to show that he had made himself responsible for the amount of the draft; witness then signed the receipt, and the defendant handed him the draft with the acceptance thereon. Being further cross-examined as to his statement in chief, that he had never heard from defendant of any contract, hut that of the plaintiffs with Locke & Conway, until defendant, after the work was finished, finally refused to pay the draft, as he had testified in chief, and being asked in that connection what he understood by the words of his own receipt, “ when due under the contract, out of the purchase money of $4500,” he said, that as he understood it when he signed it, there was so much money due by defendant to Locke & Conway, out of which defendant was to pay the amount of the draft to plaintiffs under their contract with Locke & Conway; no other contract than that between Locke & Conway and plaintiffs, was alluded to by the defendant at ■that time, or known to witness, etc.

The appellant, then offered in evidence certain papers, following:

1st. A mortgage dated the 19th of February, 1877, from Michael Roche to E. B. Hunting, reciting a lease from Hunting and wife to Roche of certain lots of ground, and that Roche covenanted to build certain houses thereon, and Hunting agreed to advance Roche $12,000 in ■money and building materials; to constitute a lien on the houses, in satisfaction of part of which on the compliance with the covenants of the mortgagor in all respects, so as to exempt from liability under the mechanics’ lien laws of Maryland, the mortgagee, Hunting, •agreed to purchase one of the houses, at the price of $7500, $3000 whereof to he credited on the mortgage, «md pay the balance of $4500 in cash. The appellant in his brief says: “It further appears, that the said Roche assigned Ms contract of leasing to Locke & Conway, and that they proceeded to build the houses in question.”

The defendant’s counsel stated, that he offered these papers, on the part of the defendant, “as the contract referred to in his acceptance aforesaid,” and proposed to follow it with proof, that nothing had at any time become •due and payable to Locke & Conway thereunder; but the plaintiffs objected, and urged that the defendant should not be allowed to read the papers to the jnry, and to follow it up with the evidence proposed, which objection the Court sustained; to which ruling the defendant excepted, which constitutes his first bill of exceptions. "

The testimony having been closed, the plaintiffs submitted one prayer, which was granted, and the defendant two, which were refused, to which ruling of the Court, the defendant also excepted, making his second bill of exceptions. The exclusion of the testimony, and the granting and refusal of the prayers, present substantially the same questions, and will be considered together.

The theory of the plaintiffs is, that by the true construction of the order and acceptance offered in evidence, the plaintiffs were entitled to receive the amount therein set forth, upon the entire fulfilment of their contract of June 18th, 1877, -with Locke & Conway.

The defendant’s contention is, that the plaintiffs are not entitled to' recover, unless they have satisfied the Court and jury by proper and competent evidence, that the defendant was bound (under his contract of purchase of the house named in said draft to have been purchased by him) to pay the purchase money of $4500, at the date of the institution of the suit.

The plaintiffs’ proposition is, that the acceptance on its face, shows that the amount named in the draft was payable unconditionally by the acceptor, on the completion of the work by Emmart & Quartley, under their contract dated June 18th, 1877.

It is the province and duty of the Court to construe all contracts offered in evidence, without the aid of extrinsic evidence, unless there is in their terms some ambiguity creating doubt as to their meaning, or unless the words were used in some technical or peculiar sense.

This is not an attempt to alter or change a written contract by parol evidence directly, but to change the meaning of the acceptance of the draft, by introducing evidence of other contracts between the acceptor and drawers of the draft, made long before, and of which the payees had no knowledge. To apply the language of the draft to a subject-matter, not within the contemplation of the drawers and payees, when the draft was drawn or accepted. The draft and acceptance written on the same paper, constitute the contract. The draft is clear, certain and definite in every particular, the sum to he paid, the funds, the payees and the time, viz., “ when they have entirely completed their contract dated June 18th, 1877.” The acceptance in connection, and as responsive to the draft, is unequivocal and free from all doubt. In technical terms, the aggregatio mentium and consensus ad idem are both complete. Put in the form of question and answer, the transaction may he thus paraphrased. Q. Will you pay $2583 out of the purchase money of house bought of us, to Emmart & Quartley, when they have completed their contract of 18 June, 1877. Ans. I will.

Besides the acceptance, the defendant drew out on cross-examination of the plaintiffs’ foreman, that when he got the acceptence of the defendant, he was required to give a receipt for the acceptance, “to show that the defendant, had made himself responsible to the plaintiffs for the amount of the draft.” This receipt, executed at the same time with the acceptance, is couched in the same terms as respects the time of payment, as the acceptance, using the identical words “ payable when due under the contract, out of the purchase money,” adding “ of $4500 ” at the end.

There is nothing in aDy contemporaneous paper comparing the draft, acceptance and receipt, and considering them as constituting one transaction, to create a doubt, as to the meaning of the contract. There is no ambiguity, patens or latens.

But the defendant insists, the true construction of the acceptance is, that the draft was payable out- of the purchase money when the money was due under the contract for the purchase of the house, under the contract between the acceptor and Locke & Conway.

And to show that there is nothing due from himself to Messrs. Locke & Conway, he offered in evidence the mortgage and other papers referred to in the record. There was no privity of contract between tbe plaintiffs and the defendant, in relation to the mortgage; or between the plaintiffs and Locke & Conway. The contract between the defendant and Locke & Conway, was entirely extraneous and independent, and after the repeated verbal assurances of the defendant, that he would pay the draft, when the painting and glazing were done by the plaintiffs, it would have been the grossest injustice, to allow him to make equivocal, certain terms, under pretext that they were susceptible of a double sense, and to introduce evidence of an entirely distinct contract of which the plaintiffs had no knowledge.

(Decided 21st January, 1881.)

This would not be to explain a latent ambiguity, by evidence of collateral matter, but to create one, and substitute one subject for another.

It is impossible without violence to all rules of construction, to ignore the time of payment, and the identity of the contract, contained in the last words of the draft, viz., “when they have entirely completed their contract, dated June 18, 1877.”

The general rules as to the admission of parol evidence to explain latent ambiguities, are too familiar to require citation. Some difficulty occasionally arises in their application, but the doctrine is well established, that as a general rule, written instruments are to be construed by the Court alone, according to the meaning of the language therein employed, without the aid of parol proof to explain the meaning and intention of the parties, unless, the terms of the instrument are technical or equivocal on its face, or are made so by reference to extraneous circunY stances. Williams vs. Woods, Bridges & Co., 16 Md., 220; Creamer vs. Stephenson, 15 Md., 211; Warner vs. Miltenberger, 21 Md., 264.

Finding no error in the rulings of the Court below the judgment will be affirmed.

Judgment affirmed.