Gibson against Tyson, 5 Watts 34

The opinion of the Court was delivered by Kennedy, J. There is nothing in the first two errors assigned, that would justify or warrant a reversal of the judgment, for the evidence given under these exceptions was not such as could have, in the slightest degree, prejudiced the defendant below with the jury.

But admitting, for the sake of argument, that the evidence objected to might have influenced the jury in deciding facts improperly against the defendant below,'still, I should doubt the propriety of reversing the judgment for that reason, if frpm the other facts and circumstances testified to by the witnesses, taken in connection with the language of the exception in the deed, we should be of opinion that the plaintiff below was entitled to recover; for the parties having by consent withdrawn the case from the jury, and agreed that all the facts which the whole evidence tended to prove should be considered as found by the jury in the form of a special verdict, and that the same should be submitted under that view to the court for its decision, I confess that I can perceive no good objection to the court’s separating and excluding from its consideration all those facts, proved exclusively to exist by the evidence improperly admitted, and thus decide the case entirely upon the facts established by the adduction of the proper evidence. • The three remaining errors grow out of the construction which the court put on the exception contained in the deed from David Brown and his wife to Vincent Field, and the facts and circumstances having relation thereto, which were given in evidence, or may perhaps more properly be said to be exceptions to the course of reasoning pursued by the judge, in coming to the conclusion that he did, but in truth may be considered as one error, to wit, that the court erred in giving judgment for the plaintiff, instead of the defendant below.

If the judgment be such as the court below ought to have given, it is immaterial whether the reasons assigned for it be the best that might have been advanced, or whether they tend to support the judgment at all or not; a critical examination, therefore, of them is unnecessary; but still I do not wish to be understood as insinuating that they, or any of them, are exceptionable in any respect whatever. It appears to me that the facts and circumstances testified to by the witnesses, when taken in connection with the words of the exception in the deed, are sufficient to support the claim of the plaintiff below.

The construction of all instruments of writing ought to be favourable, and as near to the minds and apparent intent of the parties as possible it may be, and the law will permit, for benigne sunt faciendse interpretatioñes chartarum propter simp licitatem laicorum. Et verba intentioni non e contra debent inservire. Co. Litt. 313; Litt., sect. 563 ; Ploiod. 154, 160; 1 Shep. Touch. 86.

Agreements ought, most certainly, to be construed according to the meaning and understanding which the parties had of them at the time they were made and entered into; for it is perfectly manifest, that if the meaning and intention of the parties be ■ isregarded or departed from, in attempting to put a construction upon their agreement,it is in reality making a new agreement between them, instead of expounding the old; and it must be admitted that neither courts nor juries have the power to do this; the first, and indeed the only matter then is, to ascertain, if possible, what the parties intended and gave their assent to, by making the agreement in question. 1 cannot believe, as has been contended by the counsel for the plaintiff in error, that it would comport with their intention to consider the term “ magnesia” an explanation and restriction merely of the preceding words, “ all minerals,” because, had they known the meaning of those terms among those who have any scientific knowledge on the subject, it is utterly impossible that they, intending to except magnesia alone out of the grant, could ever have thought of introducing into the exception, with that view, the words “all minerals.” But supposing the parties to be, as certainly they were, entirely destitute of all scientific knowledge in regard to such things, the introduction of these words is easily accounted for.

With the bulk of mankind, magnesia is not considered a mineral at all. Nothing is thought by them to be such unless it be of a metallic nature, such as gold, silver, iron, copper, lead, &c.; magnesia, therefore, could not have been considered by the parties as a qualification or restriction of the preceding words, “all minerals,” but was clearly intended as an addition thereto.

Besides, is it not rather absurd, to suppose that they would have used the adjunct “ all,” in connection with the noun “ minerals',” if they had intended using the term “ magnesia” for the purpose of restricting or confining the exception to that particular species of mineral ?

I also think that the words “ of any kind,” immediately following the word “ magnesia,” tend still further to show that the parties intended to embrace magnesia within the exception, in addition to what they considered minerals, because magnesia is very little known, if at all, to most of the people in the country, except in the one form in which they use it occasionally as a medicine, and they have no knowledge whatever of there being more kinds than one of it; and hence I infer that the words “ of any kind” were used in reference to the word “ minerals” alone, of which every body knows and believes there are several kinds.

But if any possible doubt could remain as to the magnesia being considered by the parties as something in addition to the minerals mentioned in the exception, it is removed by’- the testimony of Vincent Field, the party himself to the contract, from whom the plaintiff in error derives his claim to the property in dispute, and whom he has also produced as his witness.

He testifies that when he came to read the article, before signing it, “he found in it mineral and magnesia; that he then said to Brown, Nothing had been mentioned about magnesia; that he expected he was to have the magnesia; to which Brown replied that ‘ he thought proper to reserve it, and if the witness chose to take the property in that way, well and good ;’ ” thus showing, most explicitly, that the magnesia was considered by them as something different from minerals, to the reservation of which latter no objection whatever was made, but ’merely to the magnesia, because it was something new that had been superadded, without any previous mention being made of it in making the bargain.

But it has been objected, that according to the ordinary and common acceptation of the term “ mineral,” chrome is not included within the exception, because, although properly a mineral, yet, not being a metallic substance, it is not considered by the great mass of mankind as a mineral, and embraced within that term. This objection would certainly have great weight, and perhaps could not be easily overcome, were it not for the parol evidence, and the facts established by if.

This evidence, however, shows, very clearly, that it was that which is now known to be chrome, that, on the first taking up of the land in which it is found, gave to it the name of “ mine land ;” that it was thought to be a metallic ore of some kind, and spoken of frequently as containing some gold or silver. From the testimony of Field himself, it is plain that this is the same material to which Brown had particular reference, when Field talked of buying the land of him; and it cannot be doubted, I think, that he had the term “minerals” introduced into the exception contained in the

article of agreement, for the especial purpose, it would seem, of embracing it, let it be what it might, so it were a mineral of more than ordinary value. Vincent Field says that Brown called it the.precious stuff, when he first proposed buying the land of him.

And again, when they made their verbal agreement, he talked of reserving the gold and silver, supposing, doubtless, that this substance might contain a portion of one or other, fi not both óf these metals, and evidently alluded to it in such a,way as to be so understood by Field himself; but when he comes to have the agreement reduced to writing, he does not coniine or restrict himself by reserving merely the gold and silver, but excepts “ all minerals of any kind,” or, in other words, “ of every kind whatsoever;” it also appears from the evidence that Gibson, the plaintiff in error, was present when the contract was concluded between Brown and Field, and that Gibson, after he bought of Field, seemingly admitted, that under the exception in the deed, Brown, or his assignees, had a right to the chrome found on the surface of the land, but not to that which was under it.

This looks somewhat like an attempt, on his part, to evade what he felt conscious was the true meaning of the exception, that chrome was really embraced within it. Now as the substance in question turns out to be a mineral, and one of very considerable value too, I think it would be going too far to hold, under all the circumstances given in evidence, that it was not intended to be included within the exception.

And though Field swears that he did not know what mineral meant, and in this state of ignorance signed the agreement, yet this ought not to affect the rights of Brown, or those claiming under him, because Field might have inquired and informed himself of it, if he did not know. And as he did not disclose his ignorance, it cannot be even pretended that Brown was bound to give, or to attempt any explanation of it to him. Judgment affirmed.