Bertig-Smythe v. Bonsack Lumber Co.

86 S.W. 870, 112 Mo. App. 259, 1905 Mo. App. LEXIS 122

Opinion

BLAND, P. J.

(after stating the facts). — Is the order sued on ambiguous? If so, the ambiguity arises out of the closing clause or sentence of the order, to-wit: “With all overplus on lumber when shipped.” The term with “denotes or expresses some situation or relation of nearness, proximity, association, connection, or the like. It is used to denote the accompaniment of cause, means, instrument, etc.; sometimes equivalent to by.” [Webster’s Dictionary.]

The order may be construed-to mean the three hundred dollars was to be paid to plaintiff unconditionally, plus any overplus on lumber to be thereafter shipped or, with equal fidelity to- the language employed, it may be construed to mean that the three hundred dollars was to be paid from or out of any overplus on lumber to be thereafter shipped. Its susceptibility to this double construction makes it ambiguous or obscure and for this reason a resort to parol testimony was necessary to show in what sense the language used was intended by the parties to the instrument. [Martin v. Witty, 104 Mo. App. 262, 78 S. W. 829; Newberry v. Durand, 87 Mo. App. 290; Kenefick v. Type Foundry Co., 72 Mo. App. 381; Reedy Elevator Mfg. Co. v. Mertz & Hale, 80 S. W. (K. C.) 684; Smith v. Alexander, 31 Mo. 193; Shuetz v. Bailey, 40 Mo. 69.] We do not think the court erred in admitting parol evidence in respect to the meaning of the order or in refusing plaintiff’s instructions to the effect that the order was an unconditional promise to pay. The parol evidence was contradictory, but that offered by the defendant warranted the finding of the court and for this reason the finding is conclusive on this appeal.

The judgment is affirmed.

All concur.