Scott v. Morse

The opinion of the court was delivered by

The plaintiff admits, that he was bound to deliver, 'or offer to deliver, to the defendant, Robert Morse, or Timothy Morse, his agent, a note for the amount of the price of the timber according to the terms of their written ‘contract ‘ of the ninth of March, 1846, before the defendants were bound to deliver the timber to him, and that he cannot‘maintain this suit, without such performance, or offer of-performance, by himself; — and the only ques*471tion presented by this case is, whether this was done. This depends entirely upon what is to be deemed the true effect and construction of- the aforesaid written contract.

The contract on the part of the plaintiff is in the following words;; — “And-the said-Cyrus J. S. Scott, hereby promises, so soon as said timber is surveyed, to furnish said Morse a promissory “ note of hand, signed by him the said Scott and Samuel Hutch- “ ins of said Newbury, for the amount said- timber and steerage “ plank shall come to at eight dollars per thousand feet, payable one “ half by the 15th day of July next and the other half by the 15th “ day of October next, with interest after the 15th day of July “ next, — said notes to be payable at some bank in Boston, if the “ said Morse desires it.” This stipulation of the plaintiff is in clear and distinct language, and leaves no room for dispute as to its import, or requirements ; but it is insisted, that other portions of the contract should have the effect to govern and control this, so as to vary and' alter its terms, — and. doubtless the whole contract should be considered together, and all its provisions be made to harmonize, if possible.

The plaintiff relies upon the following clause of the contract, which precedes the one copied above, viz., “ And the said Morse “ farther agrees, that in case said timber is not floated by the rise “ of the river, to put such timber, as does not float, fairly afloat, or, “ in case said Morse cannot put said timber afloat, he is to delay “ payment and interest, until he does put said timber afloat;” and also upon the following stipulation- in. the contract, after his covenant above recited, to wit, “ And it is farther understood and agreed “ by the parties, that if there is any part of said-timber, that cannot “ by reasonable expense be put afloat the present spring, the said “ Scott is to have the same time to pay for said timber, after it is “ put afloat, as he does for that part which is rafted this spring, and “ no longer ; provided farther, that if any part of said timber cannot “ be floated in season to take to market as soon as next fall, on so “ much of said timber payment and interest is to be delayed until “ the fifteeenth of July, 1847.”

In cases where contradictory provisions are found in the same contract, they are all to be viewed together, and to be interpreted by that fundamental rule of construction, the apparent intention of *472the parties; but before any one clearly expressed-provision of a contract is to be entirely thrown aside, as repugnant to others in the same contract, courts seek with great diligence and care for a construction, which will give effect to all. In this case the defendants claim, that the plaintiff was bound to give, or offer to give, a note, according to the stipulation on his part. The plaintiff insists, he was not bound to execute, or offer to execute, such a note, but only a note, or notes, in which all the above conditions and stipulations should be expressed; and he made his offer accordingly. We have carefully examined all the provisions contained in the written contract of the parties, and are clearly and unanimously of opinion, that the plaintiff’s construction of the contract, in relation to the notes to be given for the price of the lumber, cannot be supported, and I will briefly state some of the reasons, which have induced this conclusion.

The stipulation of the plaintiff, as to the note he was to give, is clear and explicit, involving no doubt or uncertainty whatever in its terms ; and we cannot easily be induced to suppose, that the parties used such unequivocal language, without understanding and intending that force and effect should be given to it. Neither are we able to perceive, that the stipulations on the part of Morse at all conflict with those of the plaintiff, so that full effect cannot be given to all the terms of the contract, and all stand together; indeed, it appears to us, that the language of Morse’s part of the contract is more consistent with our view of the other part of the contract, than that which the plaintiff claims. The plaintiff was “to furnish a promissory note of hand, so soon as the timber was surveyed.” It is to be inferred from the contract, (and it is so treated by the plaintiff’s counsel in argument,) that this was to be done, before any portion of the timber would be floated, and before it could be known by the parties, whether any part, or, if any, how much, of said timber would be floated that spring, or even during that season; and of course, by the plaintiff’s construction, it was entirely uncertain, when or how he was to pay for the timber, and his note must be equally indefinite and general.

A promissory note is said by Mr. Chitty “ to be a promise, or engagement, in writing, to pay a specified sum at a time therein limited, or on demand, or at sight, to a person therein named, or *473his order, or to the bearer.” Chitty on Bills 516. And this definition, we apprehend, well expresses the popular and general idea of a promissory note. But it is very apparent, that, by the plaintiff’s construction of this contract, his note, which he was to give, and which he offered, was of an entirely different character, and in no sense answered to the legal or popular definition of a promissory note.

The plaintiff also agreed, to make his note “ payable at some bank in Boston, if Morse desired it.” The evident intention of the parties by this provision was, to enable Morse to negotiate the note and anticipate the money for his timber, and, of course, it tends strongly to the belief, that the parties contemplated not only a note legally negotiable, but an absolute note, such as would be discounted by a city bank. But it is not to be supposed, that these parties, who were business men and acquainted with the course of mercantile transactions, could have believed, that such a note as the plaintiff offered would have been of any avail to Morse for that purpose.

As before stated, we think this view not at all in conflict with the other provisions of the contract, on the part of Morse. The parties evidently supposed, that the timber probably would all be floated and sent to market that spring, and provided for the giving of a note accordingly; still, there' was a contingency about it, which the plaintiff wished to guard himself against, and therefore required a stipulation from Morse, that, in case the lumber was not floated that spring, he would “ delay payment and interest” on so much as did not float. These terms, as it seems to us, would not have been used, if Morse had not the power to call for and enforce payment ; and if the note were to be such as the plaintiff claims, there was no necessity for any such provision. On the other hand, if Morse held the plaintiff’s note, which he might enforce against him and compel payment of the money, the plaintiff then needed such a provision for his own protection, and it was exceedingly natural, that he should require such an agreement from Morse.

It is urged, however, by the plaintiff’s counsel, that if Morse negotiated the note, as contemplated, the plaintiff might be compelled to pay it, and his only remedy would be by a suit against Morse, upon the agreement to delay, and that the plaintiff would not have what Morse contracted he should have, delay, but only damages for *474breach of the agreement, which might not compensate him. We can see no greater force in this objection, than arises in every other case of contract between parties, if either refuses to perform what he agreed to do; the only remedy is in damages for non-performance, which frequently fail to make full compensation to the party injured. What Morse contracted to do, in case the timber was not all floated, was certainly a thing within his power to perform, even if he negotiated the plaintiff’s note; and it is not to be assumed, that he would not have performed it, as he agreed; and whether the contract was such as the plaintiff ought to have relied upon for his security is not for us to determine; it is sufficient to say, that it seems to have been all that he required, when he made his contract.

That these stipulations were to be independent of each other is apparent from the manner, in which the contract is drawn; for if the parties had intended the note to be conditional, and to include the contract on the part of Morse for delay in the payment, the plain and natural course would have been, to provide for such a note to be given, and then the other portions of the contract would have been wholly unnecessary.

In our view the county court erred in the construction of the contract, and their judgment is reversed and a new trial granted.