Peisch v. Dickson

19 F. Cas. 123, 1 Mason C.C. 9

• Court: U.S. Circuit Court for the District of Massachusetts
• Decided: October 15, 1815
• Status: Published

Opinion

STORY, Circuit Justice.

It is not very easy to reconcile all the decisions upon the subject of latent and patent ambiguities; and, after several efforts, I have found myself unsuccessful in every attempt to accomplish it Nothing is clearer than the general rule, — latent ambiguities may be removed by parol evidence, for they arise from the proof of facts aliunde; and where the doubt is created by parol evidence, it is reasonable, that it should be removed in the same manner. But patent ambiguities exist in the contract itself; and if the language be too doubtful for any settled construction, by the admission of parol evidence you create, and do not merely construe, the contract. You attempt to do that for the party, which he has not chosen to do for himself; and the law very properly denies such an authority to courts of justice. The difficulty, therefore, lies not in the rule itself, but in applying it to particular cases, where the shades of distinction are very nice. There seems indeed to be an intermediate class of cases, partaking of the nature both of patent and latent ambiguities; and that is, where the words are all sensible, and have a settled meaning, but at the same time consistently admit of two interpretations, according • to the subject matter in the contemplation of the parties. In such a case, I should think that parol evidence might be admitted, to show the circumstances, under which the contract was made, and the subject matter to which the parties referred. Por instance, the word “freight” has several meanings in common parlance; and if by a written contract a party were to assign his freight in a particular ship, it seems to me, that parol evidence might be admitted of the circumstances, under which the contract was made, to ascertain, whether it referred to goods on board of the ship, or an interest in the earnings of the ship; or in other words, to show in which sense the parties intended to use the term. In the present case, the inclination of my mind is to admit the parol evidence, reserving, however, the right to direct the jury to disregard it, if it shall hereafter appear to me inadmissible or inconclusive; or if, upon farther examination, the language of the contract should appear clear and unambiguous, notwithstanding the attempts to give it a double interpretation. See Birch v. Depeyster, 4 Camp. 385; Clarke v. Russel, 3 Dall. [3 U. S.] 415, 421, note.

NOTE. A bill of exceptions was tendered by the defendant, but afterwards was abandoned. This cause was tried, by consent of parties, by a special jury, as was also an issue in the case of Harvey v. Richards, at this term [Case No. 6,183]. The practice of summoning special juries, appears from the records of our courts, to have been early prevalent in Massachusetts (MSS. records, court of assistants, Suffolk county, March. 1691-2. Andrew Belcher v. James Lloyd.—Appeal from the county court in an action on a charter-party. The appellant desired a special jury of merchants, which was accordingly granted. There are many other like cases), but it has been long disused, and there is- now no power in any state court of this state, to proceed otherwise than by a jury returned and selected according to the statute provision, by drawing their names from a box kept for that purpose, by the selectmen of every town.

STORY, Circuit Justice, after summing up the facts to the jury, expressed himself to the following effect upon the law of the case:

By the general law, a factor has the security of the person, as well as a lien upon the goods of his principal, for all advances made on them. But he may waive his right to resort to the person, and if he does so, by an express agreement, it will be binding upon him. The agreement relied on in the present case is in writing; and the construction of it is a mere question of law for the determination of the court, upon which it is bound to instruct the jury. The agreement, in my judgment, contains an express contract, upon the part of the defendant, to look solely to the goods as security for the advances, and to exonerate the person and other property of the plaintiff from all responsibility for the payment. If this be the bargain between the parties, it is perfectly immaterial, whether it be prudent or discreet, or not. It is sufficient, that it is made; and the jury are bound to return a verdict for the plaintiff for the difference between the advance and the net proceeds of the property, when sold. In respect to interest, none is to be allowed upon the balance of the accounts, unless from the general usage of trade, or the particular course of dealing between the ¡parties, it is satisfactorily proved that interest was, in the understanding of the parties, to be paid.

Verdict for plaintiff, without allowance to defendant for the advance.