#### DECKER v. CARR et al.

(Supreme Court, Appellate Division, Third Department

December 2, 1896.)

Contracts—Interpretation—Incorrect Use op Word.

An instrument which recites that for value received, and to secure any indebtedness which F. may now owe, the persons signing it sell certain property to S. “or B.,” will be read “and B.,” where the debtor (F.), when the instrument was executed, was in financial trouble, largely indebted to S. and B., both of whom were evidently intended, as appeared from the negotiations, to have the benefit of the transfer as security. Parker, P. J., dissenting.

Appeal from special term, Chemung county.

Action by Casper G. Decker, as receiver of the property of Francis G..Hall, against William S. Carr, executor, and others, to set aside an instrument as void for uncertainty. From a judgment in favor of defendants, plaintiff appeals.

Affirmed.

Argued before PARKER, P. J., and LANDON, HERRICK, PUTNAM, and MERWIN, JJ.

Baldwin & Baldwin, for appellant.

John A. Reynolds, for respondents Carr and another.

Charles J. Bissell, for defendants Hall.

MERWIN, J.

The object of this action is to set aside as a nullity, as to Francis G. Hall and the plaintiff, as representing his interest, the following instrument:

> “Dansville, July 22, 1884.

> “For value received, and to secure any indebtedness which F. G. Hall may now owe or become liable for hereafter, we hereby sell, assign, and set over unto S. S. Hamlin or Betsey P. Hall all our right, title, and interest, vested and contingent, in and to the interest of Hiland S. Hall in the estate of Hiiand B. Hall, deceased, *244and under the will of Asher P. Hamlin, wherein Betsey P. Hall was conditional legatee, and all interest which we have in said estates from Hiland S. Hall.

> “M. A. Hall.

> “P. G-. Hall.”

The claim is that the instrument is void for uncertainty as to the party or parties to whom the transfer is made, occasioned by the use of the disjunctive “or” in the expression “S. S. Hamlin or Betsey P. Hall.” It was decided at special term that the instrument was valid, “and assigned and transferred the propety therein described to Samuel S. Hamlin and Betsey P. Hall, the transferees therein named, to secure the claims and debts of either of said transferees, or of both, owing to either one or both of them by the said F. G. Hall.” It has been held in many cases that, in order to effectuate the manifest intention of the parties, the court will construe the word “or” to mean “and,” as well in deeds and other instruments as in wills. Wright v. Kemp, 3 Term R. 470; Jackson v. Topping, 1 Wend. 396; Litchfield v. Cudworth, 15 Pick. 27; Railroad Co. v. Conklin, 32 Barb. 386; 1 Jarm. Wills (5th Ed.) 505; 2 Am. & Eng. Enc. Law (2d Ed.) 338. “Contracts must always be construed in reference to the subject-matter to which they relate, and in the light of the contemporaneous facts and circumstances. Evidence of the extrinsic circumstances existing at the time is therefore always admissible, not to contradict the written agreement, but to aid in its interpretation.” Phelps v. Bostwick, 22 Barb. 314. The circumstances attending the negotiations of the parties in making the contract, as well as subsequent acts and conduct, are sometimes shown. Wood, Prac. Ev. § 25. In 1 Greenl. Ev. § 288, it is said that parol evidence is admissible of extrinsic circumstances, tending to show what person or persons, or what things, were intended bv the party or to ascertain his meaning in any other respect. It is argued that the ambiguity is patent, and cannot be helped by parol evidence. In 1 Greenl. Ev. § 300, it is laid down that a patent ambiguity, within the rule applicable to such cases, is one that remains uncertain after all the evidence of surrounding circumstances and collateral facts properly admissible is exhausted. In 2 Pars. Cont. (8th Ed.) 561, 562, the rule is laid down that the law will not presume a contract incurably uncertain, and therefore null, until it has cast upon it all the light to be gathered, either from a collation of all the words used, or from all contemporaneous facts which extrinsic testimony establishes; and that, if these make the intention of the parties certain, and it is found that the words will fairly bear a construction which makes them express this intention, then the words will be so' construed, and the contract so interpreted will be enforced.

At the time the transfer in question was made, F. G. Hall was in financial trouble, and was largely in debt to S. S. Hamlin, and also to his mother, Betsey P. Hall. To secure these two debts, the transfer was made. On its face it was given as security, and it was competent to show what debts were intended to be secured. The transfer was delivered to S. S. Hamlin, and the negotiations leading to it were with him. He was, to a certain extent, the agent *245of Mrs. Hall, and he held for her a fund of which she was entitled to the possession and use during her life, and some of which had been loaned to F. G-. Hall through Hamlin; and it was understood between Hall and Hamlin that this particular property, with other, was to be turned over as collateral to these debts. There was an arrangement between Hall and Mr. Hamlin by which Hamlin was to obtain an assignment from Mrs. Hall of her debt, and Hall drew and gave to Hamlin such an assignment for him to take to West Bloomfield, where Mrs. Hall was, and have her execute it. Before this was obtained, Hall executed and mailed to Hamlin the transfer in question, interlining the words “or Betsey P. Hall.” Very clearly, the acts and negotiations of the parties in connection with the paper itself indicate an intention that Mr. Hamlin and Mrs. Hall should each have the benefit of the transfer as security for such debt as each might have respectively against Hall, and that each was named as transferee for that purpose. It was intended as a transfer to each for security as the interest of each might appear. No fraud is alleged. The plaintiff has, therefore, no greater rights than Mr. Hall would have. That construction is to be favored that will make the instrument operative, rather than one that will destroy it. The court did not, I think, err in construing “or” to mean “and,” and in holding the instrument to be valid. The judgment should be affirmed.

Judgment affirmed, with costs. All concur, except PARKER, P. J., dissenting.