Ladd, J.
The contract of subscription, upon which the plaintiffs seek to recover, is in writing, and its construction and interpretation are for the court.
[384]*384It is not claimed that the instrument contains any unusual, technical, or official words, the meaning of which, as used, must be submitted to the jury ; but it is said that it presents a latent ambiguity,, which renders parol evidence admissible to show what the parties intended by the words “ Monadnock Railroad.”
If any ambiguity exists, it is obvious that it is a latent ambiguity in the strict sense of that term, for no uncertainty or doubt appears upon the face of the instrument itself. The subscription was for twenty shares of stock in the Monadnock Railroad ; and the condition upon which the defendant was to be liable to pay for it is express and plain,— that two thousand shares of “ said stock” shall be taken in cash or its equivalent, before his liability to pay should attach.
The familiar examples of latent ambiguity given by Lord Bacon, Reg. 23, and in Altham’s Case, 8 Co. 155, a, show a double application of words of description to persons and things, — the subjects and objects of the contract or devise. In such cases, and such only, extrinsic evidence of intention is admissible to remove the uncertainty. It may be shown which of two or more persons or things was intended by a description equally applicable to all. 1 Par. on Cas. 560; 1 Greenl. Ev., sec. 300; 2 Kent’s Com. 555; Brown v. Brown, 43 N. H. 17.
If, at the time this contract was entered into, there had been two or more Monadnock Railroads, it is plain enough the plaintiffs might show, by parol, which was intended. But the difficulty with this part of the plaintiffs’ case is, that there was but one. The case shows that the only Monadnock Railroad in existence at the time of the subscription, July 3, 1868, was that chartered by the legislature of New Hampshire in 1848. The Massachusetts corporation of that name was not chai’tered till ten months later, that is, in May, 1869 ; and the present Monadnock Railroad, which seems to be constituted by a union of the New Hampshire and Massachusetts corporations, did not come into existence until more than a year after, namely, July 7, 1869. How. can it be argued, then, that there is uncertainty or doubt as to which Monadnock Railroad was meant, when there was but one of that name at the time of the contract.
This is conclusive against showing the intention of the parties, in that respect, by parol. It comes clearly within the principle of Lord Bacon’s reason for holding that a patent ambiguity is not holpen by averment, namely, “ that it were to make all deeds hollow and subject to averments, and so, in effect, that to pass without deed, which the law appointeth shall not pass but by deed.” It would, to all practical intents, annul the writing which the parties established as the evidence of their intention at the time,- and allow to be substituted for it whatever a jury may think was intended long afterwards, when perhaps the interests of the parties, as well as their relations to the subject matter of the contract, may have wholly changed, and when evidence on which one or the other might rely to show the actual fact in that respect has gone beyond his reach by the lapse of time. This the law [385]*385does not permit. It was to prevent just this mischief that the wholesome rule, that a patent ambiguity can-not be explained by parol evidence, beyond proof of the surrounding circumstances, was adopted. Webster v. Atkinson, 4 N. H. 21; Aldrich v. Jessimin, 8 N. H. 516;— and see a very accurate and useful decision of the whole matter, in Miller v. Travers, and others, 8 Bing. 244.
The maxim “ Falsa demonstrate non nocet,” &c., presents no exception ; for, after rejecting so much of the description as is false, in order that the instrument may take effect, there must still be enough left to show the intent, and ascertain its application. Peaslee v. Gee, 19 N. H. 273; Andrews v. Todd, 50 N. H. 565; Doe v. Hubbard, 15 Q. B. 240.
An intention not clearly shown by what remains cannot be imported into the instrument by extrinsic evidence.
' In giving construction to a written contract, courts always receive such evidence of the surrounding circumstances as will place them as near as may be in the position of the parties at the time it was made.
In Lady Herdley’s Case—Shore v. Wilson, 9 Cl. & Fin. 556—the great question was as to what was the sense in which the words “ godly preachers of Christ’s holy gospel ” were to be understood in the deed creating the trust. To show this, extrinsic evidence was received ; and Baron Parice, in delivering his judgment, said, — “ For the purpose of applying the instrument to the facts, and determining what passes by it, and who take an interest under it, every material fact that will enable the court to identify the person or thing mentioned in the instrument, and to place the court, — whose province it is to declare the meaning of the words of the instrument as near as may be in the situation of the parties, — is admissible in evidence.”
In Attorney-General v. Clapham, 4 DeG. McN. & G., at page 628, Lord Chancellor Cranworth, speaking of the admission of evidence for such a purpose, says, — “ It is like the evidence afforded by a dictionary, which enables us to translate a foreign language, — or a book of science, which gives us the meaning of words of art.”
The illustration of- Sir James Wigram is also extremely clear. He says, — “ A page of history may not be intelligible till some collateral extrinsic circumstances are known to the reader. No one, however, would imagine that he was acquiring a knowledge of the writer’s meaning from any other source than the page he was reading, because, in order to make that page intelligible, he required to be informed to what country the writer belonged, or to be furnished with a map of the country about which he was reading. 'Wigram on Wills, sec. 76.
Nothing remains but to make a correct application of these well settled and familiar principles to the case before us.
Enough has already been said as to any latent ambiguity within the meaning of Lord Bacon’s rule. The evidence shows none, because there was but one Mouadnock Railroad in existence at the time of the subscription.
[386]*386But looking at the contract by the light of the circumstances under which it was made, — that is, assuming as far as possible the position of the parties to it at that time, can it be said that it speaks a doubtful language ? Does the paper thus viewed show for itself that the words “ Monadnock Railroad” mean some other legal person than the only Monadnock Railroad then in existence, or leave it doubtful what was intended? We think not. If the contract had been read before the Massachusetts corporation was chartered, and before the two corporations were united, it is plain .nothing could have been found in it to suggest a doubt as to what was meant by Monadnock Railroad. To show then, by parol, that the parties understood and intended something else, would be to annul the written contract and substitute for it a verbal one, — or one perhaps only to be inferred by the jury from the acts and conduct of the parties.
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Ladd, J.
The contract of subscription, upon which the plaintiffs seek to recover, is in writing, and its construction and interpretation are for the court.
[384]*384It is not claimed that the instrument contains any unusual, technical, or official words, the meaning of which, as used, must be submitted to the jury ; but it is said that it presents a latent ambiguity,, which renders parol evidence admissible to show what the parties intended by the words “ Monadnock Railroad.”
If any ambiguity exists, it is obvious that it is a latent ambiguity in the strict sense of that term, for no uncertainty or doubt appears upon the face of the instrument itself. The subscription was for twenty shares of stock in the Monadnock Railroad ; and the condition upon which the defendant was to be liable to pay for it is express and plain,— that two thousand shares of “ said stock” shall be taken in cash or its equivalent, before his liability to pay should attach.
The familiar examples of latent ambiguity given by Lord Bacon, Reg. 23, and in Altham’s Case, 8 Co. 155, a, show a double application of words of description to persons and things, — the subjects and objects of the contract or devise. In such cases, and such only, extrinsic evidence of intention is admissible to remove the uncertainty. It may be shown which of two or more persons or things was intended by a description equally applicable to all. 1 Par. on Cas. 560; 1 Greenl. Ev., sec. 300; 2 Kent’s Com. 555; Brown v. Brown, 43 N. H. 17.
If, at the time this contract was entered into, there had been two or more Monadnock Railroads, it is plain enough the plaintiffs might show, by parol, which was intended. But the difficulty with this part of the plaintiffs’ case is, that there was but one. The case shows that the only Monadnock Railroad in existence at the time of the subscription, July 3, 1868, was that chartered by the legislature of New Hampshire in 1848. The Massachusetts corporation of that name was not chai’tered till ten months later, that is, in May, 1869 ; and the present Monadnock Railroad, which seems to be constituted by a union of the New Hampshire and Massachusetts corporations, did not come into existence until more than a year after, namely, July 7, 1869. How. can it be argued, then, that there is uncertainty or doubt as to which Monadnock Railroad was meant, when there was but one of that name at the time of the contract.
This is conclusive against showing the intention of the parties, in that respect, by parol. It comes clearly within the principle of Lord Bacon’s reason for holding that a patent ambiguity is not holpen by averment, namely, “ that it were to make all deeds hollow and subject to averments, and so, in effect, that to pass without deed, which the law appointeth shall not pass but by deed.” It would, to all practical intents, annul the writing which the parties established as the evidence of their intention at the time,- and allow to be substituted for it whatever a jury may think was intended long afterwards, when perhaps the interests of the parties, as well as their relations to the subject matter of the contract, may have wholly changed, and when evidence on which one or the other might rely to show the actual fact in that respect has gone beyond his reach by the lapse of time. This the law [385]*385does not permit. It was to prevent just this mischief that the wholesome rule, that a patent ambiguity can-not be explained by parol evidence, beyond proof of the surrounding circumstances, was adopted. Webster v. Atkinson, 4 N. H. 21; Aldrich v. Jessimin, 8 N. H. 516;— and see a very accurate and useful decision of the whole matter, in Miller v. Travers, and others, 8 Bing. 244.
The maxim “ Falsa demonstrate non nocet,” &c., presents no exception ; for, after rejecting so much of the description as is false, in order that the instrument may take effect, there must still be enough left to show the intent, and ascertain its application. Peaslee v. Gee, 19 N. H. 273; Andrews v. Todd, 50 N. H. 565; Doe v. Hubbard, 15 Q. B. 240.
An intention not clearly shown by what remains cannot be imported into the instrument by extrinsic evidence.
' In giving construction to a written contract, courts always receive such evidence of the surrounding circumstances as will place them as near as may be in the position of the parties at the time it was made.
In Lady Herdley’s Case—Shore v. Wilson, 9 Cl. & Fin. 556—the great question was as to what was the sense in which the words “ godly preachers of Christ’s holy gospel ” were to be understood in the deed creating the trust. To show this, extrinsic evidence was received ; and Baron Parice, in delivering his judgment, said, — “ For the purpose of applying the instrument to the facts, and determining what passes by it, and who take an interest under it, every material fact that will enable the court to identify the person or thing mentioned in the instrument, and to place the court, — whose province it is to declare the meaning of the words of the instrument as near as may be in the situation of the parties, — is admissible in evidence.”
In Attorney-General v. Clapham, 4 DeG. McN. & G., at page 628, Lord Chancellor Cranworth, speaking of the admission of evidence for such a purpose, says, — “ It is like the evidence afforded by a dictionary, which enables us to translate a foreign language, — or a book of science, which gives us the meaning of words of art.”
The illustration of- Sir James Wigram is also extremely clear. He says, — “ A page of history may not be intelligible till some collateral extrinsic circumstances are known to the reader. No one, however, would imagine that he was acquiring a knowledge of the writer’s meaning from any other source than the page he was reading, because, in order to make that page intelligible, he required to be informed to what country the writer belonged, or to be furnished with a map of the country about which he was reading. 'Wigram on Wills, sec. 76.
Nothing remains but to make a correct application of these well settled and familiar principles to the case before us.
Enough has already been said as to any latent ambiguity within the meaning of Lord Bacon’s rule. The evidence shows none, because there was but one Mouadnock Railroad in existence at the time of the subscription.
[386]*386But looking at the contract by the light of the circumstances under which it was made, — that is, assuming as far as possible the position of the parties to it at that time, can it be said that it speaks a doubtful language ? Does the paper thus viewed show for itself that the words “ Monadnock Railroad” mean some other legal person than the only Monadnock Railroad then in existence, or leave it doubtful what was intended? We think not. If the contract had been read before the Massachusetts corporation was chartered, and before the two corporations were united, it is plain .nothing could have been found in it to suggest a doubt as to what was meant by Monadnock Railroad. To show then, by parol, that the parties understood and intended something else, would be to annul the written contract and substitute for it a verbal one, — or one perhaps only to be inferred by the jury from the acts and conduct of the parties.
The objection of the defendant’s counsel that the subscription of the town of Winchendon in Massachusetts must be regarded as a subscription for stock in the Massachusetts corporation, according to the act conferring the authority to subscribe, and as the evidence tended strongly to show the fact was, and that therefore it could not be counted in making up the 2,000 shares, would appear to be quite formidable, and very likely on examination might prove to be decisive of the case. But the views expressed above make it unnecessary, we think, to consider this question, or others that might be raised upon the case, some of which, not alluded to in the arguments, might be of no small importance and difficulty.
For the purpose of settling all the questions of fact that might arise in this case, and a large number more supposed to involve nearly the same questions of law now pending in this county, the court instructed the jury that they might inquire whether, in using the terms “ 2,000 shares of said stock” in the defendant’s subscription, so many shares in the united enterprise of a railroad from Peterborough to Winchendon were' contemplated by the parties, and if they so found, they might count the Winchendon subscription if they found it made for the united enterprise. These pro forma instructions either assume that there was a latent ambiguity in the written contract of subscription as to what was meant by the Monadnock Railroad, which, we think, did not exist, or they are founded on a view of the law which we think erroneous. In either view they cannot be sustained.
Upon a careful examination of the case, we are of opinion that there was nothing that should have been submitted to the jury.
The contract must be interpreted by the light -of the circumstances which existed at the time it was made, and not of those which arose afterwards.
Looking at it from that point, we see nothing which requires explanation. The 2,000 shares spoken of in the condition are described as “ shares of said stock,” — that is, shares of the stock of the Monadnock Railroad.
The plaintiffs failed to show that 2,000 shares of stock in the only [387]*387Monadnock Railroad to which the contract can be legally applied had been taken at the time of the calls ; and unless they do so, it is clear the condition is not fulfilled; and the defendant’s liability to pay has not attached. Verdict set aside.