Luther Foot v. Benjamin Maxham & Elkanah Maxham, 9 Vt. 223

The opinion of the court was delivered by Williams, Ch. J It is to be regretted that the parties to the sealed instrument, dated the 17th day of March, 1834, were not more explicit. By a very trifling alteration in the phraseology, the contract would have been such an one as the plaintiff contends for. An omission of a single word would have placed it beyond a doubt, that the parties intended what the defendant now claims they did.

By adding after the word “ notes,” “ thereafter due or payable,” the plaintiff could have insisted, without any fear of contradiction, that no other notes were intended to be released, than those which fell due after the expiration of the lease ; and by omitting the word “ further,” there could have been as little question, that all the notes, executed to secure the purchase money, were intended.

We are required, however, to put a construction on this contract, as it appears from the case, as presented; and we are, by no means, certain, that the introduction of other evidence might not have warranted a different construction. By the introduction of other evidence, it is not meant that evidence of the declarations of the contracting parties, as to their intent, would have been received. But, possibly, other facts may have existed, which would tend, at least, to shew to what the parties had reference, by the terms made use of.

Very possibly, the powers of a court of chancery might be successfully exercised, in bringing about a different result from the one, to which we arrive, from our present views of the contract, in short, we are far from feeling any degree of certainty, that a decision, either way, of the case before us, may not manifestly be unjust and inequitable, as to the parties.

The doubt or ambiguity, in this case, arises from ¡the use of the term “further,” connected with the term “payments,” which Lewis covenanted the defendants should not be holden to make, or in other words, which he released, in case he neglected or refused to procure a discharge of the Dain mortgage by the time stipulated. The agreement itself does not mention that any payments had been made, either towards the purchase money, or on the notes. Indeed, no payments could have been made on the notes, as they were executed at the same time with the agreement.

If the note, declared on, had been the only one given for the purchase money, there could have been no question, but that the agreement referred to that note, and the term “further” must have been rejected as superfluous, whether the note was payable before or after the expiration of the lease. If the note sued, together with the other note of $300, payable at the same time, had been the only two notes, given for the purchase money, the same consequence would have followed.

The doubt, then, arises from the introduction of the other evidence; to wit, the mortgage, by which it appears that there were still three other notes of $375, payable after the lease had wholly expired. The ambiguity, therefore, in this instance, arises from the introduction of extraneous evidence, rather than from the instrument itself. What, then, are we to suppose, was the intention of the parties to this instrument, taking into consideration their situation at the time, having reference to the facts, which were then before them ?

On the one hand, it seems difficult to suppose, that they could have intended that notes, payable before the expiration of the lease, would not be paid at maturity; and on the other, it is equally difficult to believe, that the defendants would, in addition to the three hundred dollars, paid at the time of the execution of the contract, have also undertaken to pay the two notes of three hundred dollars each, making in all $900, and have retained only $375, to pay the Dain mortgage, which was stated at $604,41, and, with the interest, would have amounted to about $870; and to have permitted them to retain the sum of $975, for the payment of $870, would, to say the'least, have given them a good bargain.

If there had been no more than from $300, to $'400, due on the Dain mortgage, and that so understood by all the parties at the time, then it would have been rational and consistent that the agreement should have been for the defendants to pay the two $300 notes, and the residue left to meet the contingency of Lewis failing to pay the mortgage; and such, probably, we should, have considered they intended by their contract. But this does not appear to have been the case, and the Dain mortgage, so far as we can learn from the agreement,- amounted to the sum of $870, as before mentioned.

The parties, understanding that the sum was due, may be supposed, by the expression “ further payments,” to refer to the payments already advanced, to wit, the $300, paid at the time of the execution ol the contract, rather than to any payments, which would thereafter be made of the notes executed and to fall due thereafter. Further, it is susceptible of doubt, to what period the parties referred, as the time of the expiration of the lease. By a very critical exposition or construction of the words, the lease would not expire until all the premises were freed from the lease.

The agreement states, that Colton had taken a lease, which 11 will expire, on the mill part of said premises, on the first of February, 1835, and on the residue, on the first day ofMay, 1835.” In another

part it sajs, that the said Benjamin and Elkanah, the defendants, shall not take possession under the deed from said Lewsj “ until the time the lease of the said Colton, from the said Lewis, shall expire, according to the terms thereof.” ■ The parties in the agreement, then, evidently considered and speak °f the lease as expiring, as well on the first of February as the first of May; one part on the first of February, and the other on the first of May.

It may, therefore, be considered, as the other papers and circumstances, which were in proof, would render it highly probable and equitable that it should have been so, that the parties intended the Dain mortgage should be extinguished and discharged before the defendants, were to enter into possession, and that they intended by the term “ expiration of the lease,” the time when it expired as to the mill, and when the defendants were to go into possession of that part of the premises.

This construction seems to be required, in order to do justice to the parties to the contract, and render the whole contract not only just and equitable, but remove any ambiguities in the other language made use of. None of the notes would then have been due, before Lewis was to have procured a discharge of the mortgage.

The words “ further payments” would then evidently refer to the payments already made, or be rejected, and it would have been optional with Lewis, either to have paid the Dain mortgage, which, with the interest, would have amounted to about $875, when the defendants notes began to carry interest, and collect all the notes of the defendants; or, by neglecting so to do¿ leaving with them $975, a part of which was not due under two, three, and four years, to meet that mortgage.

Our construction of this contract, then, is this, that the covenant, contained in the agreement, that the defendants should not be holden, or obligated to make any further payments on the notes, given'to secure the purchase money, extends to all the notes given, and, of consequence, to the note in suit ; and that the failure of Lewis to pay the Dain mortgage, operated as a releasing of all the notes. The judgment must, therefore, be affirmed.