Bronson v. Green

1 Walk. Ch. 56

• Court: Michigan Court of Chancery
• Decided: October 15, 1842
• Status: Published

Opinion

The Chancellor.

Green insists that the sale of the lands on October 1st, 1839, was a condition precedent to the giving of the mortgage, and that, by the last contract, it was the duty of the complainants, and not of himself, to sell them. This is the only question, and the decision of the Court must depend on the construction to be given to the complainants’ covenant in the contract of June 24th, 1839, that the lands purchased under the contract of 1835, should be exposed for sale, at public vendue, on the first of October then next.

Contracts are to be construed according to the intention of the parties, which is to be looked for in the contract itself. And, when several instruments, relating to the same matter, are made between the same parties at the same time, they form one entire contract, and are to be construed together. Jackson v. McKenney, 3 Wend. R. 233; 10 Pick. R. 302. So, where one writing refers to another, the intention of the parties is to be gathered from the two instruments taken together. Cow. & H. Notes, p. 1420, and cases there cited. On the same principle, when one contract grows out of another to which it refers, and both are in writing, the first contract may be looked into to get at the intention of the parties in the last, when that intention is not clearly expressed on the face of the contract itself.

By the contract of June 24th, 1839, the complainants covenanted that the lands purchased under the contract of November 5th, 1835, should be exposed for sale, at public vendue, on the first day of October then next. The covenant does not say in express terms that they shall be exposed for sale by the complainants. This is an inference merely, drawn from the fact that the complainants are the covenantors, and it would be conclusive, were it not inconsistent with other parts of the same contract, and with the previous contract of November, 1835. That the complainants were to sell the lands, instead of Green, is inconsistent with other parts of the contract. The sale was to be at Niles, in Michigan, or at such other place as Green might elect in Illinois or Michigan. If Green was to sell them, it was proper that he should have the selection of the place of sale, more especially as they had been purchased by him, and he was better acquainted with their location, and the situation of the country, than the complainants. If the complainants were to sell them, the contract is deficient in not requiring Green to select the place of sale, and notify the complainants of it, a suitable length of time before the first of October, when the sale was to take place. Again, the contract, after stating the minimum price at which sales may be made, says the lands in Constantine may “be sold in the discretion of said Green.” The only inference to be drawn from this is, that Green was to sell the lands. He might sell the Constantine lots at such prices as he thought proper, although he was restricted in the price of the other lands. The contract further provides that the complainants shall “ execute contracts of sale, on receiving the payment of one fourth in cash,” &c. If complainants were to sell the lands, this was altogether unnecessary. It could not in any way affect their contracts with the purchasers at the sale. But, if the lands were to be sold by Green, as the title was in the complainants, it was a recognition of his agency and authority to sell, and an undertaking on the part of complainants to execute the contracts he might make. But all ambiguity as to the intention of the parties is removed, when we take the two contracts together. By the first contract, Green was to purchase the lands, to take the title in the name of complainants, to take the agency of them after they were purchased, and to sell them to the best advantage for complainants. But when and how was he to sell them? That was left to be subsequently arranged between the parties. The contract provides that all questions which may arise relative to the management or disposition of the lands, or the manner of conducting the sales, whether for cash or credit, shall be determined by a majority in interest. Green was bound to sell them, when they were to be sold, but he could not sell them without the consent, express or implied, of a majority in interest. This was given by the contract of June 24th, which fixes the time, manner and conditions of sale, and leaves the place of sale, under certain limitations, discretionary with Green. It is in this light I consider the covenant of the complainants, and it seems to me there can be no doubt on the question, when the two contracts are taken and construed together. I cannot think it was the intention of the parties to release Green from the obligation he was under to sell the lands.

It was said on the argument, that Green should have had a power of attorney from the complainants, to sell. That was not necessary. The two contracts gave him ample power for that purpose.

Demurrer overruled.