Curry v. Texas Co. ( 1928 )

The very full and clear statement of the views of the majority of the court upon rehearing makes it unnecessary for the writer, who is not in accord with the conclusions reached, to consume a great deal of space in stating the grounds of his dissent.

There is first involved a question of pleading. Whatever difference of opinion there may be as to whether "1/2 of 1/8 of .08 cents" is or is not ambiguous, there can be little doubt, I think, that plaintiff's pleading is ambiguous to say the least, wherein same undertakes to allege either or both mutual mistake and ambiguity. The pleading being ambiguous, it becomes necessary to employ rules of construction to determine whether or not there is intended to be alleged (1) "mutual mistake" alone, or (2) "ambiguity" alone, or (3) both "mutual mistake" and "ambiguity." Unless mistake and ambiguity are synonymous, the intent of the pleader to allege both may at once be ruled out. If there are different pleas, they are, in a sense, inconsistent. The rules of pleading require that they be set out in separate counts, or one alternative to the other. The allegations in each count or alternative plea are required to be consistent. District Court Rule 51; Hillebrant v. Booth, 7 Tex. 499; Thomas v. Browder,33 Tex. 783.

Application of a familiar rule of construction requires that, if an ambiguous pleading be given one of two or more possible constructions, it will show a violation of the rules of pleading, but, if given another, it will conform to such rules, it should be given the latter interpretation. It only remains to be considered then whether it is "mutual mistake" that is alleged, or whether it is "ambiguity," and whether, after all, there is any difference in the two. If we apply a well-known rule of construction, it was mistake that was intended to be pleaded. The parties and the trial court placed this practical construction on the pleadings. The plea of limitation was sustained to the claim of a right to reformation based on the theory that a plea of mutual mistake tendered such issue. Besides this, the pleading itself clearly shows a purpose to allege mutual mistake by employing the terms "by inadvertence" and "mutual mistake." Whatever else, if anything, was intended to be alleged, it seems to me too clear for argument that the pleading did seek to allege mutual mistake. Apparently the "ambiguity" theory was never injected into the case until after it became certain that any relief on the theory of "mistake" was barred by limitation. No trial amendment or other new pleading was filed to meet this situation.

This brings me to a consideration of the question: May the same pleading be good as one tendering an issue of mutual mistake as a basis for reformation and also as one permitting parol proof of the real intention of the parties on the ground that the writing is ambiguous? As I see it, if this can ever be so, it is true to a very limited extent. Ambiguity may occur in different ways. It may result by the employment of language susceptible of more than one meaning. In such case, the parties employ their words purposely, intending that they shall have the very meaning that expresses the agreement. It is essential to this character of ambiguity that the words be capable of such meaning. This, I think, is the case before us. The parties contracted that the plaintiff should be paid as royalty "1/2 of 1/8 of .08 cents." Intention must be imputed to the parties to write the words precisely as they did write them. They intended to precede the figure "8" with "naught." Likewise, the "period" preceding the "naught." Why? Because ".08" means but one thing, and there is nowhere in the entire writing anything else to indicate or create a doubt as to the fact that the parties meant what they plainly expressed — "eight-one-hundredths." Does the use of "cents" — plural rather than singular — raise a doubt as to the meaning of the language? It certainly carries not the remotest suggestion that "dollars" was intended instead of "cents." The plural of the word, if inaccurate, does not suggest a question as to whether "dollars" was intended. But it seems to me the use of "cents" instead of "cent" is not improper. Such is not an uncommon designation of a monetary denomination, such as dollars, cents, mills, "8/100" cents is but an abbreviated expression of 8/100 of a cent. So much for this character of ambiguity.

It occurs to me that there is another way that an ambiguity may result. That is, in a sense, the same as "mistake." For instance, suppose the expression under consideration had read "1/2 of 1/8 of $.08 cents"? The use of the character "$" and also the word "cents" would show a conflict and indicate mistake. Perhaps upon proper pleading and proof of mistake the instrument so written could be reformed. In such a case it would be necessary to allege wherein the mistake occurred; that is, whether in the use of the dollar mark or the word "cents." The proof would have to conform to the pleading. A careful pleader would, no doubt, consider it necessary to allege that the mistake occurred by use of the dollar mark and in the alternative by the use of the word "cents." But, I am not prepared to say that such a writing could not be declared upon by alleging ambiguity. Such plea would, of course, have to show the real meaning intended. How the failure to express the real meaning resulted would, in such case, become unimportant. This because the fact of ambiguity would be apparent on the face of the instrument. Even in the supposed case, the pleadings presenting the theory of mistake would not serve to present at the same time the theory of ambiguity and furnish proper basis in the pleading for recovery on both. They are different causes of action. They are subject to different defenses, as, for instance, limitation. They are not supportable by the same evidence. I am therefore forced to the conclusion that the plaintiff's pleading, calling as it does for construction, must be interpreted as alleging that "1/2 of 1/8 of .08 cents" was so written instead of "1/2 of 1/8 of 8 cents," or "1/2 of 1/8 of $.08," as the mistake of the scrivener. That the pleading is not susceptible of the construction that is sought as one plea to present the issue of mutual mistake, and as another one the issue of ambiguity, to my mind is quite evident. The trial court having disposed of the case upon the construction of the pleadings that the issue tendered was that of mistake rather than ambiguity, this court, I think, is not at liberty to hold that the other meaning that an ambiguous pleading may have shall constitute the basis of relief not available, but denied under the different meaning which it was construed to have. There seems to be no difference of opinion as to the necessity for pleadings to present the issue of ambiguity. This was the holding in the original opinion and in the opinion of the majority on rehearing, as shown by the quotation of San Antonio Machine Supply Co. v. Allen (Tex.Civ.App.)268 S.W. 532, as follows:

"But it devolved upon appellee to set out in specific allegations the words and phrases claimed by him to be ambiguous, or which he intended to modify or explain by parol evidence. * * * Having failed to do so, he was not entitled to judgment even though his testimony was ample."

No question, however, is presented of the sufficiency of the pleading. If the proper construction of the pleading is that it sought to allege ambiguity as distinguished from mistake, it may be conceded it was sufficient, in the absence of special exception.

The real question is one of construction of the pleading to determine whether or not thereby it was intended to be alleged that the particular provision in the contract was ambiguous. I do not think so, and for this reason, in my opinion, the judgment of the trial court should be affirmed, even though there exists an ambiguity.

The question of whether the provision is, in fact, ambiguous, has already been considered to some extent in the foregoing observation. To my mind, had the provision read "1/2 of 1/8 of .08 dollars," it would never have been seriously contended in any court that there was an ambiguity. It cannot be claimed that "1/2 of 1/8 of .08 cents" is ambiguous, and "1/2 of 1/8 of .08 dollars" is not. This is but another way of saying that, as I view it, the ambiguity has arisen from (1) the fact that payment of royalties was made at the rate of eight cents; and (2) the parol evidence showed that the real agreement of the parties was that eight cents was the royalty agreed to be paid. Neither of them, it will be conceded, is proper to be considered in determining the existence or not of an ambiguity. It is a matter of no little difficulty, however, to determine the existence of ambiguity apart from the allegation that eight cents per thousand was actually paid and apart from the evidence that such was the agreement that resulted in the contract. It may be remarked in this connection that it was not strictly proper to allege in the pleading that eight cents was actually paid. This was properly a matter of evidence to support a proper plea of ambiguity, and it is never correct to allege purely matters of evidence.

In order to consider the question of the existence of ambiguity in the provision in question entirely divorced from other considerations, let us suppose that, in the respect under consideration, the contract had read "1/2 of 1/8 of .08 dollars"; that production was had and the Texas Company had paid Curry .08 dollars and thereafterwards brought suit alleging that the provision was ambiguous and that .08 cents was intended, with a claim for the difference on the ground that payment had been made by mistake. As I see it, this would present precisely the same question we now have. Would the company be entitled to introduce parol evidence to show that the real agreement was that the rate of payment should be .08 cents? The same argument only could be made to support the existence of an ambiguity as is made in this case. The sum total of such argument is (1) that "dollars" is plural and should otherwise be singular; and (2) that the ".08" is written in decimals rather than as a common fraction, such as "1/2 of 1/8." These reasons do not appeal to me as valid. As said before, it is wholly immaterial that "dollars" or "cents" in a particular connection is grammatically correct or not. A grammatical error does not necessarily produce an ambiguity. The important question is, can "dollars" mean "cents," and, if not, how is the question affected where dollars or cents is written as plural or singular? As to the use of both common and decimal fractions, it is not at all strange that the decimal system of numbering was employed when it comes to that part of the statement prescribing the sum of money to be paid. It seems to me that it is a matter of common knowledge that decimal fractions are commonly used in expressing sums of money. Had the provision read "1/2 of 1/8 of 8/100 cents," it would probably never have been argued that there was an ambiguity, and yet it would have been unusual to have expressed the monetary denomination with common fractions rather than in decimals. Also, I take it, in the case just instanced, the plural of the word "cents" would scarcely have provoked an argument that it rendered the provision uncertain of meaning or capable of more than one meaning. I wholly fail to see that ".08" is not exactly the equivalent of 8/100, which, being true, some inconsistency of expression or unusualness of arrangement which I find wholly absent, would be necessary to warrant the striking down of a solemn contract by the introduction of parol evidence.

It must be borne in mind that it is wholly beside the question that the parties may have actually intended to make a different provision. They must be, in the absence of a pleading and proof of fraud, accident, or mistake, held to have meant what they have plainly said.

I think it is probably true that the case of Schottman v. Hoffman,73 Miss. 188, 18 So. 893, 55 Am.St.Rep. 527, quoted in the majority opinion, furnishes a state of facts the more nearly analogous to that considered here, wherein it has been held that an ambiguity exists. But this case, it seems to me, is clearly distinguishable. Suppose, in that case, there had been no distinct space between the two ciphers which were written closely together and the figure "5," and suppose none of the ciphers were written in anywise above the "5." In that case, would it have been held there was an ambiguity? Such would have brought the case upon a parallel with this. I cannot find any warrant to speculate on the fact that the parties meant something different from what they have plainly provided.

It is almost humanly impossible not to consider the hardship that results from the fact that the parties intended to stipulate for a royalty of eight cents instead of .08 cents, but ample remedy is afforded by law in a case where the parties have intended to insert a provision in a contract and have by mistake omitted same or inserted another. Because that remedy in the instant case appears to be unavailable does not justify us, in the opinion of the writer, in misapplying for appellant's benefit a principle of law that to-morrow may be highly essential for the preservation and protection of his own rights in some other relation. The temptation to give appellant relief by reading into the law an exception to avoid the apparent harshness of the rule in the particular case is great. It is this tendency of courts, more than anything else, that results in conflicts in statements of the law. In the view of the writer, however, the exceeding importance of maintaining unimpaired the principle that a written contract, when plain, shall be the sole evidence of the intention of the parties, transcends any considerations of the effect upon an individual in a given case.