#### Wilson *vs.*Robertson.

Covenant. Case 18.

Appeal from the Mason Cirruit; W. P. Roper, Judge.

*Writings. Ambiguity. Parol proof.*

November 14.

Chief Justice Robertson,

delivered the Opinion of the Court.

On 13th of September, 1823, John Wilson sold all his pecuniary interest in the estate of Richard Tilton, deceased, to John Robertson, and guarrantied its amount to be at least @700; in consideration whereof, Robertson covenanted to pay Wilson @250 in Virginapaper on the bank of Richmond, and “$450 worth of merchantable manufactured tobacco, at twenty cents per pound, delivered in the town of Maysville, on or before the 25th of December, 1823.” '

On the 21st. of April, 1829, Wilson sued Robertson in covenant , charging as a breach of his covenant, a failure to deliver the tobacco according to his undertaking. On an issue on a plea of covenants jierforuied with leave to prove any fact which might have been pleaded, a verdict and judgment were rendered for Robertson, to reverse which Wilson prosecutes this appeal.

On the trial, the appellee proved that, on the 12th of December, 1823,-he deposited, in the warehouse of January in Maysville, *15*kegs of manufactured tobacco, weighing 2,369 pounds, subject to the order of the appellant, but which he refused to receive alleging that it was not such as he was entitled to, and which, therefore, still remained in the custody of January under the original consignment; and *79fee also proved, that the tobacco thus deposited was “merchantable.” But it seems, from the bill of exceptions,-that, at the date of the covenant and of the consignment of the tobacco, there were two distinct kinds of manufactured tobacco merchantable in Maysville: one kind, sweated by a forced process in a steam, or swet house, and worth from 5 to 9 cents a.pound; the other kind, prepared by the ordinary process without any forced, or artificial sweating, and worth from 12-^ to 20, and perhaps 25 cents a pound, and that the tobacco, deposited by the appellee in December, 1823, had been manufactured by the steam process, and was far from being of the quality of tobacco thus sweated. This having been the substance of all the evidence, the appellant moved the court to instruct the jury: 1st. that, unless the tobacco which had been consigned, was worth $450 "they should find for him; 2nd. that the jury had a right to infer from the covenant and the parol evidence, that the parties intended by the *terms*— “mer*chantable tobacco at 20 cents per pound,”*such tobacco as was generally selling at 20 cents a pound at the date of the covenant, and that, unless the tobacco which had been consigned was of that class, the jury should find a verdict for damages. The court refused to give either of these instructions, but instructed the jury that if the tobacco was merchantable, the appellant was bound to allow 20 cents a pound for it without regar.d to its value, or specific kind. The appellant then, offered to prove, by a witness who was present when the contract was made, what kind of tobacco the parties intended,when they used the words, “merchantable manufactured tobacco at 20 cents per pound;” but the court supposing that such testimony would contradict, or curtail, the legal import of the covenant, refused to allow it. Whether, or not, the circuit court erred in withholding, or in giving instructions, or in refusing to permit the testimony which was offered'by the appellant, is the only question presented for consideration.

There is no patent ambiguity in the covenant, its language is intelligible, and, per *se,*imports that 20 cents a pound were fixed as the price at which man- • *80ufactured tobacco, which was merchantable, was f( ^e taLen by the appellant in discharge of the covenant by the appellee, to deliver $450 worth of tobacco at 20 cents a pound. Therefore, if extraneous facts be inadmissible, the circuit court decided correctly and its judgment is consequently right.

*Latent*ambiguicy m«y be parol evi- *^*deuce.

But the parol evidence which was given and that which was offered and rejected were admissable: no *act wbich was proved, or which the appellant offered to prove is inconsistent with the covenant. These facts can have only one of two tendencies, that is, either to apply the comprehensive and general terms of the covenant to a specific subject matter, or to prove a latent ambiguity, and then apply the words of the covenant according to the actual intention of the contracting parties. The term, merchantable, when applied to manufactured tobacco, may include tobacco not only of various qualities and values, but even of specifically different kinds and classes. When it was proved in this case, that there were two *kinds*of manufactured tobacco which, though both were merchantable, were essentially different not only in quality and value, but. in specific denomination and character, should the words of the covenant be still construed as necessarily comprehending all the qualifies and values of both kinds of tobacco, or may not extraneous proof shew that the parties intended the various qualities and grades of tobacco of the superi- or kind? We are inclined to the opinion, that the latter is the rationaal and legal interpretation of *the*contract,when all the facts are considered. It cannot bo presumed, that the appellant intended to allow 20 cent a pound for even the best quality of that kind of tobacco which was worth only from 5 to D cents. But it would not be unreasonable to infer, that he agreed to allow the maximum, or nearly that for tobacco of the kind, which was worth from I2|to 20, or 25 cents a pound; and this, as we are inclined to think, is the true meaning, and intent of the expressions “$450 worth of merchantable manufactured tobacco at 20 cents per pound,” when considered in connexion with the extraneous faot$. Such a restricted application of the comprehensive terms of the covenant may be authorized by principle and •authority. See Starke on Evidence, 1020-26. Peish *81vs. Dickson, I. Mason’s Reports, 11. Goddard vs. Balow, I. Not and McChord, 45. Cole vs. Wendell, ’ VIII Johnson, 116.

Dissent,

*Reid*and *Hard for*appellant; *Crittenden for*defendant.

Bat it is not material, whether the parol proof re-salts necessarily in 'the construction of the covenant which we have intimated; for, however, that may be, we are satisfied, that the facts which were proved created a latent ambiguity, and that, therefore, the appellant had a right to prove which of the two kinds, or classes, of merchantable tobacc.o was intended by the parties to the covenant, but not that any particular *quality*of either *kind,*was contemplated. In proving that there were two *kinds*of manufactured tobacco, a latent ambiguity, as to the *kind*intended by the parties,was established. But as there must necessarily be various qualities of the same *kind*of tobacco, there cannot be a latent ambiguity as to the “quality” of either “/ciwti.”

Judgment reversed, and cause remanded for a new trial.

DISSENT.

*Judge Buckner*

*dissenting from the majority-of the*court, *delivered his own opinion as follows:*

My opinion is-that the circuit court correctly decided the points presented; and that the judgment ought, therefore, to be affirmed. Upon the most diligent examination of such authorities, as during the pressure of business, an opportunity of consulting has been afforded, I have not found any adjudged case, which, according to my view *of*it, can suppoi’t the opinion delivered in this case. It is admitted, that there is not the slightest ambiguity on the face of the covenant, on which the judgment was obtained. It is susceptible of the most clear and satisfactory interpretation; and cannot be distinguished in principle from an ordinary covenant to deliver $450 worth of any other article, at a stipulated price; say, for example, $450 worth of corn, at $1 per barrel, or of merchantable whiskeyvat *25*cents a gallon, or of merchantable pork, at $3 per *82cwt. Of each of those Articles, there are various qualities; that is, they possess different degrees of excellence. Why, if parol evidence be admissable to prove the particular quality of the tobacco.which the parties intended should be delivered, might it not be equally admissible, to shew the intention of the parties as to the quality of the articles covenanted to be delivered in the cases supposed. No satisfactory reason can be assigned why it could not, yet no case has been cited; and I suppose, that none can be found, in which its admissibility under such circumstances, has been sanctioned.

Dissent.

In tiie opinion delivered, it is said, that “the appellant had a right to prove, which of the two kinds, or classes, of merchantable tobacco was intended by the parties to the covenant, but not that any particular quality of either kind was contemplated. I cannot consent to the correctness of the application, here made of the terms, *kind*and quality; nor to the propriety of the distinction drawn between them, as applicable to this case. The tobocco covenanted to be delivered, was to be manufactured and merchantable. The mode in which tobacco is manufactured, may affect its quality, or excellence, in its manufactured state, and consequently, its value, but it canpot change its kinds, except so far as the word, ferrad is used as significant of its quality, or the degree of its excellence. In whatever manner it may be manufactured, it might still be merchantable.

There are various modes of cultivating tobacco andjof managing it, after it is *severed-from the ground.*These different modes of treating it, produce various hues, and as various qualties, although it may all spring from seed taken from the same stock. Upon a covenant to deliver any given quantity of merchantable tobacco, will it be contended, that parol proof is admissible to shew that the parties to it, intended that the tobacco should have been *cured*by fire, or without fire, or that it should be strong dark colored tobacco best fitted to be manufactured for chewing, or light, yellow tobacco of a quality preferred for cigars? Surely not, and yet the quality and price of the one, and the other description is as *83different from each other as the article manufactured with the aid of steam, is from that manufactured without it.

Dissent.

The doctrine respecting latent ambiguities does not apply to such a case, as the one under consideration, nor can it, in any case be applied, to prove the intended quality oí the article covenanted to be delivered.

It is said to be necessarily a matter of extrinsic evidence to apply the terms of an instrument, to a particular matter; the existence of which is also mat* ter of proof.

The terms of the instrument may be sufficiently definite and distinct, yet the objects to which it is to *be*applied, may not be equally so. In such cases, it is often doubtful, whether the description contained in the instrument, applies to the particular object pointed out by the evidence, or whether it be not equally applicable to several distinct objects.

The general rule is, that a latent ambiguity as to the object intended, (that is an ambiguity arising from extrinsic evidence,) may be removed by extrinsic evidence. Thus, if in a will, the description of the devisee, or of the estate devised, may be applied to either of two persons, of the same name, or to either of two estates. For example, A devised his estate to his cousin John Cluer, and there were two persons, (father and son,) of that name, parol evidence was admitted to shew, that the son was meant, and that of necessity; because otherwise, the bequest would be void for uncertainty. In the case of Peich vs. Dickson, I, Mason’s Reports, 11, Story justice says, he had found himself unsuccessful in every attempt which he had made, to reconcile all the decisions, upon the subject of latent and patent ambiguities: “The difficulty (he remarks,) lies not in the rule itself, (than which nothing can be clearer,) but in applying it to particular cates, where the shades of distinction are very nice. 1 here seems, indeed, to be an intermediate class of cases partaking of the nature of both latent and patent ambiguities; and that is, where the words are all'sensible, and have a settled meaning, but at the same time, *84consistently admit of two interpretations according to the subject matter, in the contemplation of the parlies. In such a case, I think parol evidence might be admitted to shew the circumstances under which the contract was made, and the subject matter to which the parties referred. For instance, the word freight has several meanings, fn 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 hoard of the ship; “or to an interest in the earnings of the ship, or, in other words to shew, in what sense, the parties intended to use the term.-”

But conceding that the reasoning of Judge Story is correct, I do not see the force of the attempted application, to the present case. Here there is no difficulty as to-the meaning of the term, *merchantable.*It is not susceptible of two different meanings, like the word freight. That is not the ground, upon which the introduction of the parol testimony is-attempted to be justified; but it is, because of merchantable tobacco, there is some of cpiality superior to some others.

To admit it, for such, a purpose, would, in my opinion, be contrary to the best established principles of law, and would render the evidence of the contract furnished by the.covenant, not at all superi- or to that, dependent upon the frail recollections, or the often misconceived impressions of witnesses.