Seaman v. Civill

By the Court, Ingalls, J.

In construing the instrument in question, the intention of the parties is to be ascertained, if possible, and, when ascertained, carried into effect so far as the rules of law will permit.

I think it may be fairly inferred from the provision of the contract, that it was the intention of the parties that the $50 should he paid only in the event of a sale of the premises to a third party.

[Albany General Term, December 4, 1865.

By the above provision of the lease, Seaman, in case of sale, was to háve not only the $50, but also the right to gather the crops, which latter-privilege, is inconsistent with the idea of a sale of the premises to himself, which would embrace that right. But it was further provided that Seaman should surrender up the premises to Civill in case of sale, which is only consistent with the idea of a sale to a third party, Ho such surrender could have been contemplated .If Seaman became the purchaser, as it would be in effect surrendering the premises to himself, when the lease only provides for a surrender to Oivill.

It is quite obvious that the payment of the fifty dollars, and the right to remove the crops, was intended as a compensation to Seaman in case he was deprived of the possession of the premises before the expiration of his term, by a sale to a third party. Such is a fair and reasonable construction of the contract. Seaman has voluntarily purchased the premises and continued in the undisturbed possession of the same. If it had been the understanding of the parties that the $50 was to be paid in case of a sale to Seaman, it is but reasonable to infer that such sum would have been deducted from the purchase ! price of the premises, or some other provision then made for the payment thereof.

This is a consideration of some significance bearing upon the question as to the intention of the parties in regard to the payment of the $50, and indicates either that the plaintiff did not deem himself entitled to the money, or intended to waive the payment thereof. The plaintiff has failed to establish a cáse entitling him to recover, and the judgment of the county court must be affirmed, with costs.

Hogeboom, Peckham, Miller and Ingalls, Justice.]