Penn v. Hare

WILLSON, C. J.

(after stating the facts as above). It is insisted that when considered, as it should have been, with reference to its language and the circumstances shown by the testimony, the meaning of the contract was doubtful; that the trial court therefore should have had the jury to determine its meaning, and hence erred when, construing it himself, he peremptorily instructed the jury as he did. The contention is overruled. The contract was in writing, and the doubt as to its meaning arose from the-language the parties used, and not from extrinsic matters. In such a case the law seems to be well established that the question as to what the parties meant is for the court, and not the jury. Simkins on Contracts, 494 et seq.; 2 Elliott on Contracts,, 855, 858; 6 R. C. L. 862, 863; 13 C. J. 796.

Another insistence is that the trial court,, having usurped, it is charged, a right which should have been exercised by the jury, construed the contract to mean that the proceeds of the crops were to be divided into-two equal parts; that the sum advanced by appellee to Mrs. Penn was to be deducted, from one of the parts; that what was left of that part was then to be divided into two-equal parts, one of which was to belong to-Mrs. Penn, and the other of which, together with the other half of the entire proceeds, was to belong to appellee; whereas he should have construed it to mean that the sum advanced by appellee was to be deducted from the entire proceeds, when the part left was to be divided equally between the par ties. Had tlie trial court construed the contract as charged, it would have been error; hut he did not so construe it. What he did construe it to mean, as is shown by the account he stated between the parties in the judgment, was that the proceeds of the crops were to be divided into two equal parts, one' of which was to belong to appellee, and the other of which, alter deducting therefrom the sum appellee advanced to Mrs. Penn, was to belong to her.

Notwithstanding the inconsistent and contradictory language in the contract, we think it is reasonably clear that the parties meant what the trial court determined they meant. The rule applicable where such language is found in a contract is stated as follows in 13 O. J. 535:

“Where two clauses are inconsistent and conflicting', they must be construed so as to give effect to the intention of the parties as collected from the whole instrument, and apparently conflicting provisions must be reconciled, if possible by any reasonable* interpretation, it being necessary for this purpose to consider the entire instrument and the surrounding circumstances. * * * Where two clauses are so repugnant that they cannot stand together, the first will be retained, and the second rejected, unless the inconsistency is so great as to avoid the instrument for uncertainty, and this rule is the more readily applied where the instrument is apparently carelessly drawn.”

Still another contention is that, if the parties meant what the trial court determined they meant,' the contract was within the prohibition in article 5475, Vernon’s Statutes, as amended by the act of March 5, 1915 (Laws 1915, c. 38 [Vernon’s Ann. Civ. St. Supp. 1918, art. 5475]), against the charge by a landlord who furnishes the tenant everything necessary to make the crops, except the labor, of more than one-half such crops as rent.. The contention is based on the misapprehension pointed out above as to what the trial court construed the meaning of the contract to be. Construing it as that court construed it, the contract clearly was not subject to the objection urged to it.

Other contentions presented by the assignments also are overruled, and the judgment is affirmed.