Herring v. Boston Iron Co.

67 Mass. 134

• Court: Massachusetts Supreme Judicial Court
• Decided: March 15, 1854
• Status: Published

Opinion

Thomas, J

Many questions have been elaborately discussed in the argument of this cause, which we have found it unneces sary to consider, being of opinion that a new trial should be had upon, the question for whom and on whose credit the wort was done and the materials furnished.

The memorandum indicates who is to do the work, and, by reference to a former agreement, the terms on which it is to be done; but it is left doubtful for whom and on whose credit and account the labor is to be performed and materials suppKed. It is plain that extrinsic evidence must be admitted to ascertain who are designated by the words “ Horace Gray, Esq. and others,” and what is meant by the words, “other” and “first,” which are relative words. It is uncertain whether the words, “ Horace Gray, Esq. and others ” constitute part of the designation or description of the new iron works, or the persons by whom the building was to be constructed, or the persons for whom or oh whose account the building was to be erected.

To ascertain who are the parties, resort must doubtless be had, in the first instance, to the written instrument. If this fail to designate them or either of them, resort must be had to extrinsic evidence to supply the want. If the contract is ambiguous, and the ambiguity is latent, that is, if it results from viewing the instrument in the light of the collateral facts, or what may be called the necessary extrinsic evidence, that ambiguity is to be removed by other evidence from the same source, according to the familiar maxim of Lord Bacon, nam quod ex facta oriiwr ambigwum, verificatione facti tollitur.

New trial granted.