Day v. Towns , 76 N.H. 200 ( 1911 )

The chief question here presented is the construction of the defendant's agreement to "furnish and give Flora S. Towns a home upon said premises." The defendant's claim is that he is merely obliged to furnish lodging, while the plaintiff seeks to recover for both lodging and sustenance. It is manifest that the word "home" has not such a fixed meaning that it would accurately and precisely limit an obligation like the one here in question. Recourse may therefore be had to other evidence to ascertain the intent of the parties. Kendall v. Green, 67 N.H. 557.

It appears that for nearly twenty years the parties acted upon a well defined construction of the language used. The defendant furnished the plaintiff board and lodging, while she contributed such service as she could perform in the household and bore the expense of her own clothing and doctor's bills. "This is a practical construction which the parties themselves put upon the deed, and that construction after long acquiescence the court will adopt when. the language of the deed is ambiguous." Newmarket Mfg. Co. v. Pendergast,24 N.H. 54, 66. The defendant's contention that acute analysis of all the language in the provision for support might, tend to sustain his position is not of controlling importance. The question being what the language meant to the persons using it, their understanding as evidenced by their acts, which cover nearly a score of years, furnishes a much more satisfactory answer than one drawn from a fine balancing of the words and phrases of the deed. "As rule, when the parties to a contract have so acted in relation to any of its provisions as to show their understanding of them, and this course of action has continued for a long time, the court will adopt that understanding unless the language of the contract is clearly incapable of such construction." Morrill v. Weeks, 70 N.H. 178,180. The ruling of the superior court that the defendant is liable for board and lodging, but not for other necessaries, was correct.

The defendant also seeks to set off against the plaintiff's claim the value of her future earning capacity. The ground for this claim is not apparent. He was entitled to the value of such services as the contract contemplated she should render for him — that is, her labor in his household. But no reason appears why he should claim title to some added earning capacity she might possess. It may be that if she forsook the work in his home to engage in some profitable labor, she would be liable to him in damages; but the. measure of those damages would be what he lost by the breach — not what she gained thereby.

The rule of damages applied by the presiding justice was the correct one. On one side was the value of the support to be furnished; on the other side, that of the services to be rendered in the household. The difference between the two represented the plaintiff's net loss. The defendant's claim, that in the assessment no deduction was made for the value of the services to which he was entitled, seems to be contrary to the reported facts; but to enable him to remove all doubt, the order of judgment will be stayed until the case is returned to the superior court, where application can be made to the presiding justice for further findings.

The plaintiff's exceptions are disposed of by what has been said of those taken by the defendant. If the contract is capable of a construction imposing upon the defendant the duty to furnish the plaintiff clothing and medical attendance, it might also be thought to have the contrary meaning. And having been construed by the parties in the latter way for many years, it is much more probable that they always so understood its provisions. Unless the findings are changed upon further hearing in the superior court, there should be judgment for the plaintiff for $1,400.

Case discharged.

All concurred.