David Patrick vs. Olive Grant, 14 Me. 233

After a continuance, the opinion of the Court was drawn up by Weston C. J. It is the duty of courts to give effect to contracts, however unskilfully drawn, if the intention of the parties can be understood; and they can be enforced, without a violation of the rules of law. The instrument, upon which the plaintiff relies, has the solemnities of a deed; and was doubtless intended to have an effect, well understood by the parties. And applying its provisions to the subject matter, the covenants, into which the defendants then entered, may be rendered intelligible.

The mill privilege, in regard to which the plaintiff might sustain damage, is described in the instrument; and made certain by the deed, referred to, of Charles Patrick to Thomas Patrick. Of this the plaintiff had a deed; as is fairly to be understood, from the defendant’s covenants. “ And if the said David’s deed shall not prove a good title,” the defendant engages to pay all damage, that he might be at, and to save him harmless from all damages, that might arise to him on account of said privilege.

To show that the plaintiff had a deed of the privilege, was but applying the instrument to its subject matter, which is at all times admissible. And to make it appear, how he was liable to suffer damage, from a failure of title, against which the defendant had covenanted to indemnify him, it was competent for him to prove, that he had, by a deed of warranty, conveyed the same privilege to third persons. These deeds, then, in our judgment, ought to have been received.

If it be contended, that it is uncertain what deed was intended, whether that which the plaintiff received, or that which he gave ; as either may be called the plaintiff’s deed, it may be replied, that the ambiguity thence arising, if there is one, is latent; the existence of the two deeds being disclosed by evidence aliunde. And when thus disclosed, we think it not difficult to determine, which deed was intended. The plaintiff’s title, such as it was, was derived from the deed to him.

That then must have been the deed referred to, as if that title, thus acquired, did not prove good, he was to be indemnified against all damage, which he might sustain thereby. The plaintiff’s title must have arisen from the deed to, not from, him. Although we have no doubt, that a fair construction of the instrument, requires that it should be so understood, it happens to be quite immaterial, on the question of damages, which deed was intended. The injury to the plaintiff, arises from the failure of the title he conveyed. If that failed, it must have been because that, which he received, was not good.

Both deeds involve the same title, and whichever was referred to, the measure of damages would be the same. In our opinion, the nonsuit was improperly ordered. The plaintiff should have been permitted to make out his case. The exceptions are accordingly sustained ; the nonsuit is set aside; and the action is to stand for trial.