Curtiss v. . Howell , 6 Trans. App. 290 ( 1868 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The judge upon the trial held, that, by the true construction of the contract, the defendant had the entire year to deliver the thousand tons of bark required to be delivered per year during five years. In this, I think he was correct. The undertaking of the plaintiff was to deliver one thousand tons of ground bark per year for the term of five years, to commence on the first day of September next. Had this undertaking been to pay a thousand dollars per year for the term of five years, no one would have questioned the right of the promisor to the whole year in which to make the payment. The words "per year" are equivalent to the word "annually," and, to my mind, conveys the same idea. It is true, that the word "per" may be understood as during, but, had the latter word been used, the meaning would have been the same. The promise would have been performed by a delivery at any time before the expiration of the year. The clause, providing that the price should be payable whenever twenty tons were delivered, does not change or affect this construction. Its only effect is to show, that the plaintiff was not bound to deliver the entire quantity at one time, nor to wait for his pay until the whole quantity was delivered, but to give him the right to deliver from time to time during the year, and insist upon the payment as often as he delivered twenty tons. It did not purport to give any right to the defendant to insist upon the delivery of any portion in a manner different from the undertaking made by the plaintiff. Clauses are frequently found in contracts binding the creditor to receive partial payments from the debtor before the time specified for payment of the debt, but it has never been claimed, that such clauses conferred any right upon the creditor to insist upon such payments being made. It is clear, that the evidence of a promise by the plaintiff to deliver the bark from time to time during the year as required by the plaintiff in his business made before the contract was reduced to writing, and executed by the parties, was properly excluded. This comes within the familiar rule, that all previous verbal negotiation and understandings are merged in the writing, which is the only competent evidence of the contract between the parties. When the meaning of the language used is uncertain, or the construction is doubtful, the former may be ascertained, or the latter determined, by proof of the extrinsic facts known to the parties in reference to which the contract was entered into; in other words, those whose duty it is to determine the rights and obligations of the parties to the contract, may be informed of all such extrinsic facts within the knowledge of the parties to the contract at the time of making it as will afford any aid in determining the sense in which its language was used by the parties, and the intention and purposes designed to be effected by such use. But, when no such doubt or uncertainty exists, there is no occasion to resort to such evidence. It then becomes immaterial. That is the present case. There is no doubt about the meaning of a promise to deliver a thousand tons of ground bark per year for a term of five years, or its construction. Evidence, therefore, of the business of the plaintiff, of the quantity of bark used therein, or the times in the year when required for such use, of the amount of storage required therefor, the danger of injury if exposed to rain or storms, was immaterial, and properly excluded on that ground. The remaining question in the case is, whether the defendant, for the purpose of showing his right to rescind the contract, had the right to prove, that he was induced to enter into it by the false and fraudulent representations of the plaintiff that he had ample means to execute it, that he owned a large quantity of bark lands, and, as I understand the effect of the offer, that he had ample pecuniary means to enable him to perform the contract, and ample responsibility to respond in damages for any breach, when, in fact, he owned no such lands, and was utterly insolvent. It is a settled principle, that a party, induced to enter into a contract by the fraudulent representations of the other upon any matter material to the benefits and advantages expected to be derived from the contract, has, upon discovery of the fraud, the right, if exercised promptly, of rescinding the contract, and thus of putting an end to his liability thereon. The question, whether the plaintiff owned the land from which the bark was to be procured, was not material, for it would be all the same to the defendant how the plaintiff obtained the bark, whether from his own land, or by purchase from others. The pecuniary ability of the plaintiff to respond for a breach on his part is of a different character. An executory contract, for the purchase and delivery of property, extending over a period of years, is obviously of more value, if made with a solvent, than with an insolvent, party. In the former case, if the article rises in the market to an amount exceeding the contract price, the purchaser will receive either the property or damages compensating the loss sustained by the failure; while, in the latter case, he would have no certainty of either. Fraudulent representations as to the solvency of the plaintiff were upon a point material to the benefits derivable from the contract, and, I think, would authorize the party to rescind the same by acting promptly upon discovery. It is not necessary to determine this question, for the reason, that the party exercising this right must not only act promptly, but must restore to the other party what he has received under the contract. The defendant had received thirty or forty tons of bark, and paid for it. This he did not offer to restore upon receiving back the price paid for it. It is no answer to say, that he could not, because the bark had been consumed. If this was so, the right of rescission no longer existed, for this is a right, that can only be exercised by restoring all that has been received, and, when the power to do this ceases, the right is at an end. The judgment appealed from must be affirmed.

WOODRUFF, CLERKE and MASON, JJ., for reversal.

Judgment affirmed.