#### Watson *v.*Lamb et al.

*Contract to deliver "my hogs”*— Parol *testimony may show all hogs*- *not delivered*— But *may not vary written agreement.*

In an action to recover damages for alleged failure of the vendor to deliver hogs according to the terms -of a written contract in which the subject of the sale is designated as “my hogs,” the plaintiff may introduce parol evidence to show that the defendant did not deliver all of his hogs, but not for the purpose of changing the terms of the written contract into which the parties entered.

(No. 9302

Decided January 22, 1907.)

Error to the Circuit Court of Fairfield County.

The defendants in error brought suit in the court of common pleas to recover upon two causes of action for the alleged failure of Watson to deliver to them the number of hogs required for the performance of two written contracts of sale, each of which contracts was counted upon in their *482causes' of action. In the first cause of action they alleged that on January 24, 1901, Watson, in writing, agreed to deliver to them in the last ten days of the following September sixty-five hogs at the agreed price of five cents per pound, but upon the condition that if his hogs should die from cholera both parties should be released from the obligations of their contract. They attached to their petition what purported to be a copy of the contract containing a stipulation for the delivery of sixty-five hogs at the time stated, and they averred that in “said written contract, as it now appears in the memorandum book of the defendant, the weight of said hogs is not stated, but it was to be an average of not less than two hundred pounds each¡” 1 They, further averred that the defendant delivered thirty of said hogs, but* without excuse failed- and refused to deliver the remaining thirty-five. The allegation of the petition as to the minimum weight of the hogs required by that contract appears to have been conceded- for- the purposes of the trial.

In their second cause of action they alleged that on May 18, 1901, the defendant in writing agreed to deliver to them in the last half of January, 1902, eighty hogs of an average weight of not less than one hundred and fifty pounds and that he delivered only seventeen thereof, failing and refusing without excuse to deliver the remaining sixty-three. In this cause of action they alleged that the copy of the contract counted upon is attached to the petition. A copy of a contract is so attached to the petition, but this stipulation is not in accord with the allegation of the petition, since it shows the subject of the contract *483to be *“my hogs,”*without any stipulation as to their number.

In his answer to the first cause of fiction Watson denies that he contracted as therein alleged. He alleged that the subject of the contract was described as “my hogs” in the written contract into which the parties had entered, without any stipulation as to their number, and that he had fully performed the contract as made. Answering the second cause of action, he alleged that he had contracted only with reference to the hogs mentioned in the agreement attached to said petition (“my hogs”), and that the seventeen hogs which he delivered were all he had of the required weight.

Replying,’ the plaintiffs denied all the allegations of the answer except those 'which, in. the petition, were expressly admitted to be true. .On the trial of the case the plaintiffs themselves offered in evidence the contract relating to the first delivery of hogs as it was written in the bopk of the defendant, and in that contract he agreed to. deliver “my hogs,” there being no mention of the definite number of sixty-five hogs, as alleged in the first cause of action • in the petition; or of any other number. Against the objection of the defendant the plaintiffs were permitted to introduce evidence tending to show that in the conversations leading up to. the making of the written contracts the defendant proposed to sell to the plaintiffs the definite numbers of eighty hogs and sixty-five hogs, and that those numbers were in fact the subject of the contracts. In the instructions given to the jury they were authorized to consider such declarations, if made, as measuring the contractual obligations of the vendor. The *484court refused to instruct the jury as requested by the defendant that he was bound only to deliver such of his hogs as by prudent, reasonable and proper feeding could be brought to the required weight. The jury found for the plaintiffs on both causes of action. A motion for a new trial was overruled and judgment was entered on the verdict. That judgment was affirmed by the circuit court.

*Mr. C. W. McCleery*and *Mr. W. K. Martin,*for plaintiff in error.

An examination of the facts in this case will show that the court submitted to the jury the question of the interpretation, or construction, of both written contracts sued upon.

The submission of this question to the jury we contend was error.

In the trial of such an action the interpretation of the instrument belongs to the court, and it is error to submit its construction to the jury. *Monnett*v. *Monnett, Admr.,*46 Ohio St., 30; Beach on Modern Law of Contracts, Vol. 1, Section 743; *Wason*v. *Rowe,*16 Vt., 525; *Barton*v. *Gray,*57 Mich., 622; *Chicago Cheese Co.*v. *Fogg,*53 Fed. Rep., 72; *Dwight et al., Exrs.,*v. *Germania Life Ins. Co.,*103 N. Y., 341; *Brady et al., Exrs.,*v. *Cassidy et al.,*104 N. Y., 147.

The second ground upon which the plaintiff in error relies for a reversal is that the court infringed and violated the broad rule of parol evidence and permitted testimony to be introduced and considered by the jury that varied and contradicted the plain meaning of a written contract.

*485This error arose out of the attempt to explain the words “my hogs,” as used in the contract, and for the purpose of this argument both contracts may be taken together as reading “my.”

The case hinged upon the meaning to be given to this one word. The plaintiffs below and the defendants in error contended that under the one contract it meant sixty-five hogs and under the other contract eighty, and this because, as they alleged, those numbers represented what hogs the parties had intended to sell. To prove this allegation the plaintiffs introduced the testimony, over the objection of counsel for defendant, of plaintiffs and of bystanders who were present at the time the contract was made and who heard the conversation leading up to it.

It is in the admission of this testimony that the error lies.

The defendant contended that “my” meant just what it said, that is, what it would be understood to an ordinary man to mean when used in such connection. A person in speaking of “my hogs” would mean the hogs he then had or would have at the time to. which the remark referred.

The rule of law that parol evidence is not admissible to vary or contradict or alter the plain meaning of a written instrument, is too well and wisely established to require a lengthy citation of authorities in its support. *Tuttle*v. *Burgett's Admr.,*53 Ohio St., 498; *First National Bank*v. *Central Chandelier Co.,*17 C. C., 443; Thompson Ohio Trial Evidence, see Section 405 and Ohio cases cited thereunder.

In order to justify the admission of parol evidence to show that “my” meant something else *486than ordinarily, .and to explain and construe it, the court ruled and so charged the jury that “my” as used in these contracts is ambiguous.

Now, then, if the word “my” is ambiguous in a legal sense, the evidence to explain it is properly admitted and the argument of the plaintiff in error on this point fails, for the rule of parol evidence above recited is subject to an exception as well established as the rule itself, namely, that evidencé outside the contract is admissible to explain a latent ambiguity therein. *Baldwin Quarry Co.*v. *Clemens,*38 Ohio St., 587; Beach on Contracts, Vol. 1, Section 742, 3-744.

There are known to the law two kinds of ambiguities, patent and latent. It is not and can not be contended that there is any patent ambiguity here. If any, then it is a latent one.

The definition of a latent ambiguity has been given by this supreme court in *Webster & Hubbard*v. *Paul,*10 Ohio St., 531-4, as “where you show that words apply equally well to two different things or subject-matters,” or a latent ambiguity is one which arises out of a writing perfectly clear on its face, but which is -shown by parol evidence to be equally applicable to either one of two different things or subject-matters.

The application of this rule is found and clearly illustrated in *Quarry Co.*v. *Clemens, supra; Macdonald*v. *Longbottom,*102 Eng. Com. Law. 977; *Hart*v. *Hammett,*18 Vt., 127.

The parol evidence rule itself applied and not the exception: Elliott, Vol. 1, 605; Beach on Modern Law of Contracts, Vol. 1, Section *714; Johnson*v. *Pierce,*16 Ohio St., 473; *Ormsbee*v. *Machir & Renick,*20 Ohio St., 295.

*487We contend that the contract reading “my hogs” was one for the sale of an indefinite quantity of determinate chattels. The quantity varied, being dependent upon how many hogs Watson could in good faith bring to maturity to comply with the weight required at the time of delivery; the chattels were determinate in being Watson’s hogs.

By the admission of this parol testimony the contract was transformed into one for the sale of a definite quantity; that is, any sixty-five or eighty hogs that Watson could gather together, agreeable to the contract specifications. He could have delivered any hogs and not necessarily his hogs, and certainly not necessarily all his hogs..

Therefore, this testimony contradicted the contract as to quantity and changed the contract by extending it from the sale of determinate chattels to the sale of indeterminate chattels.

*Mr. M. A. Daugherty*and *Mr. Thomas H. Dolson,*for defendants in error.'

Let it be conceded, that, in all cases where parol evidence can not be received and proof of surrounding facts and circumstances not admitted, the court must interpret the contract. There is no dispute about that rule. But what is the rule when the trial is to the jury and parol evidence is admissible, under the rules of law, to arrive at the true intention of the parties to the agreement? In such a case does court or jury interpret the contract? The answer is plain. When the issue is a jury one, the jury decides and in that sense interprets the contract. When *488the issue is tried to the judge, he must answer and therefore construes the contract. It will hardly be claimed that on trial to a jury, the parol testimony being conflicting, the judge should construe the contract, when ambiguous in its terms or aided in its meaning by the light of extrinsic facts and circumstances. Beach on Modern Law of Contracts, Section 743.

This is the course pursued by the court here in submitting to the jury whether the parties intended by the word “my” only such hogs of the defendant’s own raising as might by proper care and feeding meet the weight required, as contended by defendant, or whether they intended the sixty-five and eighty hogs respectively claimed by the plaintiffs.

It is not insisted that the court submitted any other term of the contract to the interpretation of the jury, save and except the number of hogs intended by the parties to be the subject-matter of their contract. Vol. 9, page 784, Cyclopedia of Law and Procedure (Cyc.).

Whenever parol evidence is admissible, or whenever surrounding circumstances are competent to be related to the jury, and the case is a jury case, then the jury construes the contract to ascertain its meaning. Beach on Modern Law of Contracts, AVI. 1, 244; *Ginnuth et al.*v. *Blankenship & Blake*Co., 28 S. W. Rep., 828; *Brown & Co.*v. *M’Gran,*14 Pet., 479.

It must be remembered that the only question or term of the contract submitted to the jury was as to the meaning of the term “my” — what hogs did the parties intend and mean when they used that term. No other portion, term, provision or *489word of the contract was left to the jury for its construction except this one word “my.”

The court did interpret the contract in every respect except this one word. If the evidence introduced was competent, then surely the jury-must interpret, because the evidence is submitted to it.

Did the court err in allowing the parol evidence of the contemporaneous declarations of the parties to be introduced, or statements made by them in their prior negotiations leading up to the signing of the contract, showing' what definite and specific number of hogs was by them understood and intended to be sold, and delivered ?

Watson meeting Lamb, in Lancaster on the 24th of January, requested him to sign it, which he did, writing on Watson’s memorandum book in pencil. That a carload, or sixty-five hogs, was the number agreed upon by the parties is beyond all question.

The testimony is equally convincing that the parties intended and understood the number to be delivered under the contract of May 18, 1901, was eighty.

Watson sold and delivered twenty hogs to David Ewing in the last half of October at $6 per hundred.

It is clear from the examination of the record that Watson had sixty-five hogs when he made the first contract and eighty when he made the last contract. If this be true — and it is — the verdict and judgment below are right and should not be disturbed, even though an incorrect statement of law might have been announced to the jury, but the law was correctly given.

It is undoubtedly the law that in a suit on a *490written instrument which has been altered, no notice of the alteration need be taken in the pleading. The petition will state the contract as it was written and signed. If for no other reason, the testimony of the witnesses as to the number of hogs intended under the contract of January 24, 1901, would be competent on the question of alteration. The number agreed upon would be properly offered in evidence on that issue.

But if the contracts were both written “my,” testimony of the number would be competent on the meaning of that uncertain, indefinite and ambiguous term. What did the parties, mean and intend by the use of that word?

The oral evidence did not contradict, or change, or alter, or add to the contract: it only explained and developed the meaning of one of the words of the contract. It identified the subject-matter and applied this indefinite and uncertain term “my” to its appropriate object. *Ormsbee*v. *Machir & Renick,*20 Ohio St., 295; *Macdonald*v. *Longbottom,*102 Eng. Com. Law, cited with approval in *Baldwin Quarry Co.*v. *Clements,*38 Ohio St., 587, is decisive of the case.

The admissibility of' this oral evidence rests firmly on the ground that it made plain and clear the meaning the parties intended to attach to that expression of the contract. Beach on Modern Law of Contract, Vol. 1, Section 740; *Shore*v. *Attorney-General, ex rel.,*9 Clark & F., 355; *Masters*v. *Freeman & Zent,*17 Ohio St., 323; Thompson’s Trial Evidence, Sections 408, 9-11; Abbott’s Trial Evidence, pages 360-361, paragraphs 4 and 5; Stephens’ Digest Law Evidence, page 362; *Hildebrand*v. *Fogle,*20 Ohio, 147.

An instructive case on the question is found in *491*Royal Ins. Co.*v. *Walrath,*17 C. *C.,*509, 514, 515, where many cases are cited; Elliott on Evidence, Sections 597 and 602.

Shauck, C. J.

Some doubt and controversy should have been eliminated from the case by an instruction to the jury to regard the written contract introduced as the contract which the parties had made for the first delivery. Not only did the plaintiffs themselves introduce that contract in evidence, but their claim that it had been changed after its execution did not meet the test of cross-examination nor the evidence offered to show that the contract remained as it had been executed. The case presented a single question for the jury to determine, and it was common to both causes of action. That question was fairly stated in the instruction which the defendant requested and the court refused. Did the defendant deliver to the plaintiffs all of the hogs which he had which might by proper feeding and care be brought up to the required weights by the times stipulated for their delivery? To establish the claim of the plaintiffs that he had not done so, parol evidence was competent, for to that extent the phrase “my hogs” which the parties used in making the contract to designate its subject was ambiguous. But there is no justification for the admission of parol evidence to show that the parties made a contract different in terms from that which they had written and signed, nor for the instruction given to the jury that they might consider that evidence in determining what contract the parties had made, nor for the refusal to give the requested instruction referred to. Parol evidence was not competent to vary the *492terms of the contract, although it was competent to apply the terms of the contract to its subject. The wisdom of this rule could hardly be better illustrated than in the present case. The vendor was not a dealer in hogs, but was a farmer and raiser of hogs. The vendees were dealers in hogs, and they were contracting with respect to the marketing of the hogs which the vendor might produce upon his own farm. Not only is this implied by the terms used in the contracts, but in one of them it is expressly stipulated that if the vendor’s hogs should die both parties should be released from the obligations of the contract. It is plain that the understanding of the parties with respect to the subject of the sale was not more definite than the phrase which they employed to designate it. They were contracting only with reference to the vendor’s hogs, and the number of them which could with proper care and feeding be. brought to the minimum weight designated by the times fixed for delivery could not be precisely known. Because it could not be precisely known it could not be precisely stated. It is true that in other portions of the charge the rules of law respecting the conclusiveness of written instruments were correctly stated to the jury, but such abstract statements could not .be an effectual antidote against the concrete errors referred to. It is obvious that a very simple case was complicated by the persistent efforts of the plaintiffs upon the trial to expand it beyond its legal dimensions.

*Judgments reversed.*

Price, Crew, Summers, Spear and Davis, JJ., concur.