Varnum v. Thruston

Tuck, J., delivered the opinion of this court- The only subject before us on this appeal, is, the construction of the agreement of January 24th, 1853. The rules of interpretation asserted on the part of the appellee, cannot be questioned; but they are all subordinate tothe leading principle, that the intention of the parties, to becollected from the entire instrument, must prevail, unless inconsistent with some rule of law. And the maxim, that thewords of a writing shall be taken most strongly against the-party employing them, “applies only to-cases of ambiguity in-the words, or where the exposition is requisite to give them-lawful effect. It is a rule of strictness and rigor, and not to-be resorted to but where other rules of exposition fail- The- ⁴⁹⁷ modem and more reasonable practice is, to give to tile language its just, sense, and to search for the precise meaning, find one requisite to give duo and fair effect to the contract, Without adopting either the rule of a rigid or of an indulgent construction.” 2 Kent, 556.

Carroll vs. Granite Co., 11 Md. Rep., 411 . Applying these cardinal rules to the present instrument, we have not been able to reach the conclusion to which the able arguments of the appellee’s counsel sought to direct us. We must regard the whole agreement, the nature of the transaction in hand, its objects and purposes, and the means and manner of accomplishing them, as disclosed by the instrument itself, and looking to these, we cannot doubt that the parlies designed that the right of the appellee should be contingent, and not fixed aud certain, to the degree now contended for on his behalf. The agreement and schedule show that Cowles had speculated in coal lands, and made large purchases, which he transferred to Varnum and Aspinwall, who were to provide funds to meet his engagements.

The third article expressly provides that they should hold the lands “"subject to their claim, to be reimbursed the cost thereof, and all expenses in relation thereto,” for the benefit of themselves and Cowles, as thereafter provided. A joint stock company was to be created, and these lands converted into stock, to be issued to the appellants, who were to deal with the shares as provided in the fifth, article, on a portion of which the appellee mainly relies, in support of bis claim to priority. Now the first question that naturally arises here is, whether it was designed that Varnum and Aspinwall should be in any worse condition after the formation of the company than before? that is to say, were they, or not, to hold the stock as they had held the lands, its a security for their outlay? We think that only one answer san be made to this inquiry, and that is, that it was the intention that the stock should stand as a substituted security in place of the land, and that the fifth article must be deemed, as far as the appellants’ reimbursement was contemplated by ⁴⁹⁸ the1 parties, as intended to accomplish that end.

Considering: the merits of the case, we can see no possible objection to this view of the agreement, while considej-alions of justice demand it. The question then arises, is there any thing in the fifth or any other article, by which they have stripped themselves of the security provided by the third? If it were not for the words “one-twentieth part of the whole capital stock,” we suppose that no such pretension could be advanced. Bui that clause dees not stand alone.

It appears to us to be impossible to separate it from the context, and give it the meaning contended for, without defeating- the manifest object of" the parties as to other ends contemplated at the time of making the agreement. It is said that these words created a positive and fixed right in the appellee to that portion of the stock, without reference to the result of sales-, or other contingency. We may here remark, that if the parties- had so* intended, it was easy to have placed the matter beyond' doubt. This clause is- the last of the fifth article, by which certain-duties had been imposed on the appellants; which it might be impossible for them to discharge, if thé appellee^ construction were to- prevail.

We think the order of sentences- and the phraseology imply something more than a succession of events; for the transfer to the appellee was to be made after certain other things were to have been d'one. Let us see-what these requirements are. The appellants- were, “out of the stock so issued to them, to sell sufficient to reimburse them the cost of the land,”' &c. Was not the whole stock placed at their disposal, if it required all? “Sufficient” means enough, what may be necessary to accomplish an object;- and how any other effect can be ascribed- to- the word, as here employed, we do not perceive, unless we adopt the suggestion-made at the bar, that it must be intended that the parties-meant sufficient of the disposable stock.

But here we would-be met by the difficulty, that if the agreement, as it