Bradley v. Washington, Alexandria, & Georgetown Steam Packet Co.

*104 Mr. Justice Thompson.

I have not been able to concur in the opinion of a majority'of the Court in this case. .1 admit, in the fullest extent, the rule, that párol evidencé.js admissible to explain a latent ambiguity. - - But I cannot percéive any ambiguity in the contract in this case., require ing the application of that rulé. The contract is dated the 19 th of November,. 1831, and was for the hire of the steamboat Franklin, to be placed on the route from Washington to Potomac creek, until the Sydney should be placed on the route; and to commence on the day after the' date of the contract, at the. rate of thirty-five dollars per day, clear of all expenses, other than the wages of the captain, which were to be paid by the company. The only question in the case is, as to the. admissibility of the parol-evidence offered on the trial. I think it was properly rejected-by . 'the Court. "Whatever related to any conversations, or negotiations on the sub-, ject, previous to the consummation of the contract, were merged iff the final conclusion of the' contract; according to- the well-settled rule of law. And whatever passed between the parties, after .the contract was concluded, was also'inadmissible; because it tended to vary the contract, and substitute another for that which-had been concluded between them. The contract was for the use of the Franklin, without any specified limitations as to time. It was to continue until the Sydney was placed on the route. The Sydney wasowned-by Mr. Bradley, and Was at the timé the contract was entered into, at Baltimore, for the purpose of being fitted with her' engine,'and other equipments necessary to completé her. The time, therefore, for which the Franklin was to be employed, depended entirely upon the Sydney’s being placed upon thé route. And. this was at the election of Mr. Bradley: the boat Was his, and the repairs or equipments were under his directions, and could not be hastened by the owners of the Franklin; and .they had it not in their power, to put an end to the contract, but were bound to keep their boat ready for the use of Mr. Bradley, until the Sydney was placed on the route. It is not at all probable from the date of the contract, about the middle-of November, that either party anticipated the freezing of the river so .early as it did; or some provision would have been made in .the contract for such event. The loss resulting from. such an unexpected and temporary obstruction by the ice, ought to fall on the party who is chargeable with the delay, in placing the Sydney on the route — and that was Mr. Bradley. The boat was his;' and the placing her on the route was at his election, and of .'course at his risk.

Mr. Justice Catkon.

The contract given in evidence to sustain the action below is free from any ambiguity on its face'; and the question is, can oral evidence be resorted to — first, to raise an ambiguity, by showing the. objects of, and circumstances that lead to, the contract; and second, to explain the ambiguity created by the oral evidence ? .

*105 - I think no such ambiguity, by. extrinsic and inferior evidence, can be created, thereby to open the contract to explanations and additions inconsistent with itsfface.

Nór caff oral evidence be called in to explain .the ambiguity inferred from the circumstances and unexpressed intentions,, in refer-' ence to which the parties are supposed to have contracted. Their entire meaning is taken to be in the Writing. 3 Stark. Evid. 999, 1000.

By this means new and independent stipulations are sought, as I apprehend, to be added, dehors the written agreement, varying its terms plainly expressed; so that if may be made to operate different ways, according to the explanatory evidence. This case well-illustrates- the effect of the'doctrine. . Had the ice not closed the'fiver, then'Mr. Bradley would have had no. excuse: this is matter of proof. Had the Sydney not been repaired, then he would have had no excuse: This is also matter of proof. Had the steamboat epmpany established that they in previous winters took their boat, the Fránldin, out of the Potomac, after the ice formed in .this-river; and run her in other waters, not subject to ice; and that Mr. Bradley prevented them from taking the usual .course until the boat was. frozen up in the river; then all equity and justice would have been on the side of the plaintiffs below. . Hence ;thé rights of the parties - on another trial will not depend on the written contract; but it will operate according to the oral proof, and the conditions thus inserted into it. It is clear, the oral evidénce, and not the writing, must produce the definite effect;

I hold, nothirig ean be added to a written agreement^ unless there be a cleat subsequent, independent agreement, varying the former; but not where it is matter passing at the same time with the written agreement. -

Truly, where the terms of the written' instrument aré clear, oral evidence is used to point the application to this or that subject matter, It acts in aid of the written ffistruinent, to give it -the intended application; not to add to its terms, by inserting new conditions and limitations in- the contemplation of the parties, and to be inferred from extrinsic circumstances, existing- when the agreement was. made. . '

To control its construction by oral proof of the objects of .the contracting parties, and the purposes of the contract,.would lead to. the dangerous result of construing every writing not by its. face, not by the language employed; but by matters extrinsic, variant in each case, as human' testimony should make it: the construction, of necessity, to be determined by the jury, and not by the Court,-whose usual province it is. to construe written agreements.

The controlling extrinsic circumstance invoked as an element to construe the contract before the Court, is, that the boat Franklin was hired to carry the mail; and that so soon as the ice prevented her from running, it must be inferred the object of Mr. Bradley (at the daté of the contract) was, to surrender the boat, and carry the mail *106 in stages. As to this, the agreement is wholly silent, and the oral proof may eontradict ,the assumption; -if ser, no ambiguity will be raised by the proof, as a foundation for further explanation. Súppose it to be proved that the intention of the plaintiff in error was to carry passengers; and to have the entire transportation on the Potomac, .at the opening and close of the session of Congress: and that he was willing to pay the price'per .day for the Franklin, for the sake of the monopoly, and the power to ’ increase the fare ;— that he bought out a rival, risking' the chances of the season, and the number of passengers: Or suppose it be proved that Mr. Bradley had (at the date of the agreement) taken his horses off of the stage line, and had no reliance to carry the mail but this boat — and ,pat ,Ve designed to keep her until he supplied her place, even should the river close for a time. In these events the written contract would be construed to mean, as the oral evidence proved Mr. Bradley, intended when he made it.' He had the power to retain the Franklin as long as he chose to keep the Sydney out of the river; throughout the whole spring and summer of 1832 — and may have so intended, had the winter, been an open oné, and thef river not obstructed.

. If Mr. Bradley had the power to. elect according to a reserved indention,and put.an end to the agreement; so had the other side, on a similar reservation, not expressed, but to be inferred from circumstances existing, at the time, and in reference to which the parties are supposed!» have contracted.

I think'no oral proof could be let in to raise an ambiguity, nor to explain it-when raised; and that in this case, as in-all others, the parties must abide by their agreement, fairly made, and plainly expressed.