
    Lines and another, executors of Ezra Lines, against Flagg and another.
    New-Haven,
    July, 1823.
    To a promissory note, given by A. to B., there was annexed a writing, signed by B., in these words: “I agree with A. to give up this note without payment, if my son-in-law C. should, at any time, within three years, recommence baking, in N. H., or selling bread, in any form."—Within eight days previous to the expiration of the three years, C., who had become an inhabitant of another state, returned to N. H., leaving his family behind; hired a bakeshop in N. H.; purchased two loads of wood, two barrels of flour, some butter and other materials; procured tools; commenced baking, and baked the flour purchased, except about 15 lbs., into crackers and ginger-bread, for the purpose of selling them; and during this period, actually sold them in N. H., and immediately afterwards left the state. The jury having found, under the direction of the judge, that these acts were not done with a view to a permanent establishment, it was held, that they did not constitute the recommencement of baking or selling bread in N. H., within the meaning of the contract.
    This was an action on a conditional promissory note. The note and condition were in these words: “For value received, we jointly and severally promise Ezra Lines, to pat him, or his order, one thousand dollars, in three years from the 8th day of May next, with annual interest till paid. March 28th, 1818. [Signed.] E. & E. Flagg.
    
    “I agree with Enoch and Elisha Flagg to give up this note, without payment, if my son-in-law Jacob Wolf should, at any time within three years from May 8th, 1818, recommence baking in New-Haven, or selling bread, in any form. New-Haven, March 28th, 1818. Ezra Lines."
    
    The defendants pleaded, That at the execution and delivery of the note to the plaintiff’s testator, Jacob Wolf, his son-in-law, was a baker, carrying on the business of baking, manufacturing and vending bread, in all its forms, in New-Haven; that the defendants were, at the same time, carrying on the same business in New-Haven; and that said note was given upon an agreement, and in consideration, that said Wolf should discontinue the business of baking and vending bread, in all its forms, in New-Haven, for the space of three years from the 8th of May, 1818. The plea then averred, that said Wolf, within three years from the 8th of May, 1818, viz. on the 1st of May, 1821, in New-Haven, did recommence and set up, and did carry on, for a long space of time, viz. from the 1st to the 8th of said May, the baking and manufacturing of bread, ginger-bread and crackers, and other bread stuff, contrary to, and in violation of, the condition of said note.
    
      The replication stated, that immediately after the execution of the note, Wolf ceased from said business in New-Haven, and removed, with his family, to Cincinnati, in Ohio, where he has, ever since, down to the time of plea pleaded, been engaged in the same business; but within three days of the expiration of the three years mentioned in the condition of the note, he came to New-Haven, and threatened to attempt a violation of such condition, and with that view, bought a barrel of flour, manufactured it into bread and crackers, with the implements of the defendant, and, by collusion with him, thus endeavoured to defraud the plaintiffs of a recovery on said note; and immediately thereafter returned to Cincinnati. There was then a formal traverse of the defendants’ plea; on which issue was joined.
    The cause was tried at New-Haven, August term, 1822, before Peters, J.
    The plaintiffs claimed to have proved, that on the 21st of May, 1821, Jacob Wolf hired a bake-shop in New-Haven, without agreeing for any particular rent, or time for which he was to occupy it; that he immediately purchased, and removed to such bake-shop, two loads of wood, two barrels of flour, a quantity of butter, and other materials, for the making and baking of crackers and ginger-bread, and he procured tools, and commenced baking, and carried it on, from the 1st to the 8th of May, by baking into crackers and ginger-bread all the flour so purchased, except 15 lb., for the purpose of selling it, in that form, to the citizens of New-Haven; and that during this period, he sold said crackers and ginger-bread to sundry citizens of New-Haven, and received payment there for. It was admitted, by the defendants, that immediately after the 8th of May, 1821, Wolf discontinued the baking and selling of bread, in any form, and left the state, to which he has not since returned. The defendants thereupon requested the judge to instruct the jury, that if they should find the facts above stated to be proved, they ought to return a verdict for the defendants. And they further requested the judge to in struct the jury, that if Wolf commenced baking with a view to sell the article baked, it was a violation of the condition of the note, whether he carried on the business of baking for a longer or a shorter period.
    The judge, after a statement of the case, instructed the jury as follows: “In deciding this case, it is necessary to take into consideration the intent and meaning of the condition. It is apparent, that the object of this stipulation or condition was, to remove Jacob Wolf's bakery from New-Haven, and to restrain him from re-establishing himself there, in the same business; and I am of opinion, that the acts of baking and selling bread, crackers, &c., as claimed to be proved, do not amount to a recommencing, setting up, and carrying on baking, manufacturing, and selling bread, crackers, &c. within the true intent and meaning of the condition of the note, unless done with a view to a permanent establishment.”
    Under this direction, the jury returned a verdict for the plaintiffs; and the defendants moved for a new trial, on the ground of a mis-direction.
    N. Smith and Staples, in support of the motion,
    contended, 1. That the charge to the jury had placed the determination, of the cause upon a point not in issue between the parties.
    2. That this point was not within the condition of the note. The charge superadded a stipulation to the stipulations of the parties. The contract stated by the judge required different proof to support it, from that made by the parties. The condition annexed to the note is precedent to the obligation of payment, and is to be strictly fulfilled. The general object contemplated by both parties, was, to protect the defendants from the evils of competition in their business. To effect this object, the parties stipulated, not merely that Wolf should not permanently establish his business there again, but that he should not recommence it, within the period specified. The first act of breaking and selling bread, is a breach of the condition. If Wolf had baked bread for his own family only, he would have done no act within the contract; for this would have been no part of the business of baking and selling bread. But if the act done was within the contract, it could make no difference as to the question of breach, whether that act was repeated, or whether it was done with an intention of repeating it. Suppose a policy of insurance against fire had been effected on this bake-shop, in which there was inserted a condition, that the occupant should not recommence baking or selling bread in such bake-shop, within a limited time; and the occupant had done the acts, which Wolf did, in this case; and then the bake-shop had burnt down; could the insured recover on the policy? Park on Insur. c. 18. p. 422. 428. (6th Lond. ed.) Suppose there had been a by-law of the city, that no man should commence the baking and selling of bread, within certain limits; and then a citizen had done the same acts within those limits, which Wolf did, in this case; would there be no violation of the law? Would it be any defence, that such acts were not done with a view to a permanent establishment?
    
      Daggett and Sherman, contra,
    remarked, that the case presented no question as to the correctness of the charge in relation to the issue, distinct from the general question upon the construction of the writing. They then contended,
    That in the construction of this instrument, the governing principle was the intention of the parties; that their intention was to be collected, not merely from the literal sense of the expressions,—for qui hæret in litera, hæret in cortice,—but from the nature of the transaction, and the object in view; that the subject of the negociation, was the carrying on of a trade or business; that these terms import a regular course of labour or employment, and and are not satisfied by a few occasional acts; that the object of the parties was to prevent competition in the market, in the exercise of such business; and that whether the acts in question constituted a recommencement of such business, depended upon their being done with a view to a permanent establishment. If Wolf meant to continue these acts as a business, there was a breach of the condition; otherwise, there was not.
   Hosmer, Ch. J.

The plaintiffs, as the executors of Ezra Lines, deceased, commenced their action on a promissory note, executed by the defendants, dated the 28th day of March, 1818, in and by which they promised the testator, to pay him, or order, 1000 dollars, in three years from the 8th day of May then next. Having prayed oyer of the note, and of the condition, and covenant subjoined thereto, the defendants recite the same, being in the following words: “I agree with Enoch and Elisha Flagg, to give up this note, without payment, if any son-in-law, Jacob Wolf, should, at any time within three years from May 8th, 1818, recommence baking in New-Haven, or selling bread, in any form.” They then plead in bar of the action, that at the execution and delivery of said note. Jacob Wolf aforesaid was a baker, carrying on the business of baking, manufacturing and selling bread, in all its forms, in said New-Haven, as were likewise the defendants; and the preceding note was given upon an agreement, and in consideration, that the said Wolf should discontinue the business of baking and selling bread in said New-Haven, for three years next subsequent to the 8th May, 1818. The defendants then aver, that the said Wolf, within three years from the said 8th of May, that is, on or about the 1st of said May, in said New-Haven, did recommence and set up, and did carry on, for a long space of time, viz. from the 1st to the 8th of said May, the baking and manufacturing of bread, crackers, ginger-bread, and other bread-stuff, contrary to, and in violation of, the condition of said note. To this plea, the plaintiffs replied, commencing their replication with a long inducement, the statement of which is unnecessary, and then concluding, with a literal traverse of all the facts in the defendants’ plea, which relate to the recommencement by Wolf of the baking, manufacturing and selling of bread in New-Haven, contrary to the condition and covenant subjoined to the aforesaid note. On this special issue, the parties went to trial; and it was claimed to be proved, that on the 1st day of May, 1821, Wolf hired a bake-shop in New-Haven, without any agreement for the rent, or the time during which he was to occupy it; that immediately thereupon, he purchased two loads of wood, two barrels of flour, a quantity of butter, and other materials, for the making and baking of crackers, and ginger-bread, and removed the articles purchased to the said bake-shop; that he procured tools, and commenced baking, and carried it on from the 1st to the 8th of May aforesaid, by baking into crackers and ginger-bread the said two barrels of flour, except about fifteen pounds; that the said flour was baked as aforesaid, for the purpose of being sold to the citizens of New-Haven; and that on several days between the 1st and 8th of May, the said Wolf retailed the crackers and ginger-bread aforesaid to the citizens of New-Haven, and received payment therefor. After the said 8th day of May, Wolf discontinued the baking and selling of bread, and left the state; to which he has not since returned.

In his charge to the jury, after having recited the above facts, the Judge informed them, that it was necessary to take into consideration the intent and meaning of the condition to the note. He then remarked, that the object of the stipulation was, to remove Jacob Wolf’s bakery from New-Haven, and to restrain him from re-establishing himself there, in the same business; and that the acts of baking and selling bread, as claimed to be proved, did not amount to a re-commencing, setting up and carrying on, the baking, manufacturing and selling of bread, crackers, &c. within the true intent and meaning of the condition to the note, unless done with a view to a permanent establishment.

I have been thus minute in the statement of the case, as there exists a difference of opinion, relative to the correctness of the Judge’s charge, and it has become necessary that the facts be understood, with all imaginable precision. A little diversity in the statement of the facts, may have a material effect in the construction of the contract between the parties.

Undoubtedly, it was the opinion of the Judge, as I think it must be that of every other person, that Wolf commenced the baking in New-Haven, and the selling of bread, contrary to the condition of the aforesaid note, unless its being done, with a view to a permanent establishment of the business, was a part of the agreement.

The case presents the general question, What is the correct construction of the before-mentioned contract? The condition of the note, as it has been denominated, is, in fact, a covenant on the part of the plaintiffs’ testator, that he will surrender it, without payment, on the happening of a certain event. If, however, it be considered as a condition or qualification of the agreement, it was entered into by the plaintiffs’ testator, for the defendants’ benefit; and in either view of the subject, it must be taken most strongly against him, lest, by the obscure wording of his own contract, he should find means to evade or elude it. This, I am well aware, is a rule of construction only to be resorted to, when there is an ambiguity remaining, relative to the purpose of the parties, after every practicable effort has been made, to ascertain their real intention. In the attempt to investigate the true meaning of the stipulation, I shall examine the words of the condition,—the general object in view,—and the special means, by which the parties intended to guard and effectuate their engagement.

1. As to the words of the condition. In the argument of the case, the contract was spoken of, as if it had been an agreement not to re-commence the baking business, or the business of selling bread; or not to establish the business of baking, with a view to carry it on; and in other forms of phraseology, supposed to be synonymous with the real engagement. When the enquiry is, what was the contract of the parties, and what the interpretation of it, from the words used, (the principal signs of their intention,) it is very inadmissible to adopt any other language than that in which the agreement was conceived. By any other process, the meaning of the terms is never acquired, hut the impressions of the speaker are improperly substituted. If we will adhere precisely to the language, by which the intention of the parties is recorded, I think the meaning will be found to be so clear and unequivocal, as to fall within the rule, that it is not permitted to interpret that which has no need of interpretation. Vattel, lib. 2. cap. 17. sect. 263. The plaintiffs’ testator agrees to give up the note without payment, if his son-in-law, Jacob Wolf, shall, within three years from May 8th, 1818, recommence the baking in New-Haven, or the selling of bread, in any form. What is meant by the word recommence? for on his single term, the controverted construction of the condition, does most essentially depend. In the best lexicographers, as well as in common conversation, to recommence, is considered as synonymous with the expression, to begin anew; and preserving the order of the ideas signified, the word is of the same signification, with the terms again begin; and as the term recommence, by a necessary subintelligitur, must be considered as preceding the expression selling bread, the engagement by the plaintiffs’ testator was precisely equivalent with the following language, viz. Wolf shall not again begin the baking, or again begin the selling of bread. It is impossible to select an expression more definitely limited, and more perfectly unequivocal, than this; and if, by the subtility of criticism, this plain mode of speech can be made susceptible of a doubt, I shall despair of finding terms, which will be proof against a similar disquisition. Had Wolf never baked or sold bread, in New-Haven, and the preceding engagement had been entered into, the expression would have been, he shall not commence the baking in New-Haven or the selling of bread. Who would have entertained a doubt from this phraseology, of its having been stipulated, that he shall not begin to bake or to sell; and that the commencement, the very first act of the beginning, was a breach of the contract? The agreement under discussion, must receive the same construction; for a contract, that a person shall not begin to do certain business, or if he had before been of the same occupation, that he shall not again begin, is of similar import, and infracted by the same act. I think it irrefragably clear, so far as the intention of the parties is indicated by their language, that the interdict on Wolf did not regard the establishment and carrying on the business of a baker, merely, but the incipient step to this proceeding; and the wisdom of the contract, aimed, as it was, at an act, which would give a clear field, and no competitor, to the defendants, I trust, will, by and by, be made to appear, in a manner the most satisfactory.

2. The general object, which the parties had in view, is in perfect harmony with the literal construction of the contract. Wolf and the defendants were bakers; and the latter were willing to give 1000 dollars, if the former would wholly intermit his occupation at New-Haven, for three years, and give them the undisturbed possession of the market. Any thing short of this would not effectuate the intended purposes. Whether the act of Wolf, in the baking and selling of bread, was with a view to a permanent establishment in the business, or a temporary continuance only, could not have entered into the contemplation of the parties. Wolf, to use a common, but expressive phrase, was bought out; 1000 dollars was promised for the entire relinquishment of his occupation at New-Haven; and by the defendants, the distinction between a durable, or occasional exercise of his occupation, as a baker, could never have been imagined; as either of them, although differing in the degree of injury, would diminish their profits, and impair the benefits of the contract. The charge of the Judge, I cannot but consider as indefensible, and the principle assumed, as resulting in consequences the most unreasonable. Wolf, according to the construction given, might exercise the trade of a baker, without controul, if it were not done, with a view to a permanent establishment, notwithstanding the contract declares, that he shall not again begin, for the space of three years, to bake or sell bread, in New-Haven. It is not easy to define the bounds of this limitation; but perhaps it may be fairly said, to mean an establishment, for an indefinite period of time. If this is intended, it results, that having agreed, in terminis, for three successive years, not to begin again, in New-Haven, the baking or selling of bread, Wolf might enter on the same occupation as before, and supply the market for one, two or more years, to the injury or exclusion of the defendants, if there were a point of limitation, beyond which the business was not intended to be pursued. This consequence is too irrational to be vindicated. If, however, by a permanent establishment, a definite period is embraced, (for on this subject I confess incapacity to assign the limits,) what is the terminus a quo et ad quem, of this privileged time? Is it a month, a year, or a longer circuit of duration? But every month, every year, every period of time within the term, during which, the labours of Wolf, at New-Haven, in the occupation of a baker, were to be intermitted, if he pursue the business of baking and selling bread, diminishes the expected profits of the defendants, and deprives them of the fruit of their purchase. I readily admit, that the injury, perpetrated by the manufacture and sale of a single barrel of flour, is so small, that an attempt to avoid the note in question, for this reason, may subject the defendants to the imputation of doing as they would not be done by. But such considerations cannot affect the legal construction of the contract, so long as it is the duty of the Court, “jus discere, sed non dare."

3. I now recur to the third topic of argument suggested, that is, the special means, by which the parties intended to guard and effectuate their engagement. It was by a contract, inhibiting Wolf from commencing the business of a baker, within the specified period. As the general object was, to secure the undisturbed possession of the market, the necessary mode of doing this, was that to which they resorted. They drew certain lines, which were not to be passed over, and so defined the right of the defendants, that it could not be transgressed otherwise than intentionally. Hence, the contract prohibited the least interference on the part of Wolf, by providing, that he should not begin to act in his occupation, at New-Haven, within three years. The literal construction of the contract, is indispensible to effectuate the object of the parties, and secure the privilege of the defendants from invasion. Wolf could not begin to bake and sell bread, without transgressing their rights, and impairing the object of their purchase. The prohibition on him, according to the plain letter of the engagement, was both wise and necessary. There is nothing unusual in securing a general object, by a definite limitation; and the law relative to the contracts of infants, furnishes an obvious illustration. I am aware, that the cases are not precisely parallel, as in the law respecting infancy, the letter of the law is not deviated from, although it extends beyond the general object in view. But in the case under discussion, the literal construction is not only necessary to secure the purpose of the parties, but the least departure from it, impairs the object of the contract. I will merely remark, in addition, that unless the letter of the contract is adhered to, in this case, as indicative of the intention of the contractors, there is no principle by which the object of the engagement can be secured. If the agreement had contained the expression "with a view to a permanent establishment." adopted in the charge to the jury the end designed, would have been entirely frustrated. Wolf might have recommenced his occupation, impaired the profits of the defendants, and virtually have nullified the engagement.

I am clearly of opinion, that the charge was incorrect; and I would, therefore, advise a new trial.

Chapman, J. was of the same opinion.

Bristol, J.

The agreement annexed to the note, and signed by the testator, is in these words: “I agree with Enoch and Elisha Flagg, to give up this note, without payment, if my son-in-law, Jacob Wolf, should at any time within three years from May 8th, 1818, recommence baking in New-Haven, or selling bread, in any form. New-Haven, March 28th, 1818.

Ezra Lines."

The only question in the case, is, whether Jacob Wolf, upon the facts disclosed, has “recommenced, baking or selling bread, in New-Haven,” within the meaning of the contract?

If the words are taken in their literal meaning, it may be granted that Wolf offended against the letter of the contract. So he would, had he baked bread in New-Haven, merely for the use of his own family; for he was neither “to bake” nor “sell” bread in New-Haven. But this literal construction has been abandoned, by the counsel for the defendants; and in making this concession, they only agree, what all others must admit, that it is not the letter, but the spirit and meaning of the contract, which is to govern the case.

Instances of departing from the letter of a contract or statute, the more effectually to execute the intention, will occur to every one, who reflects on the subject. A covenant against all claims, is so restrained, as to comprehend those claims only, which are lawful. The law against drawing blood in the street, was broken in its letter, by the physician, who drew blood to save the life of a man taken in a fit; but the spirit of the law was not violated, by this act of humanity. Indeed, the physician would have been considered grossly blameable, had he omitted this act of duty, from any scruples of violating the law in question. We are commanded not to kill; but the generality of the prohibition is restrained by the reason of the rule. So, a contract may be fulfilled, according to the letter, but not according to the meaning. Thus, a garrison capitulated, upon condition that no blood should be shed; and this condition was literally fulfilled, by burying the prisoners alive. So, in the present case, had Wolf established a bake-house, just within the limits of East-Haven, and there baked and sold bread, to the citizens of New-Haven, during the whole three years, the contract would have been, literally, performed; yet who can doubt that this would be considered as violating the spirit of the contract?

We are prepared to enquire, whether Jacob Wolf “recommenced baking or selling bread,” within the spirit of the contract?

The facts are shortly these. Jacob Wolf, at the time he did the acts complained of, was an inhabitant of Cincinnati, Ohio. He was at New-Haven, on a temporary visit; his family was in Ohio; and he was still carrying on the business of a baker there. He had no intention of pursuing the business of baking and selling bread in New-Haven, but intended to return, in a few days, to his family and business in Ohio. He was, at New-Haven, a mere bird of passage, without any intention of prosecuting the baking business, or of interfering with the defendants, by a rival establishment. In eight days, he baked and sold something more than one barrel, and not two barrels, of flour; and when the three years were out, and his conduct could no further affect the rights of the parties, then he stopped baking, and returned to Ohio.

As the motive of Wolf is immaterial, and no evidence was introduced to shew any connivance between him and the defendants; the only question is, whether these facts constitute a “recommencement of baking or selling bread in New-Haven,” within the meaning of the contract.

By “recommencing, baking or selling bread in New-Haven,” I understand the parties intended to provide against the recommencement of the baking business; or the trade of baking; or in other words, the setting up or re-establishment of a bakery, by Wolf. That this is the meaning of the contract, thus far, is yielded by the counsel for the defendants, as well as by my brethren, who dissent from the opinion of the court: and without this concession, they would, at the threshold, stumble on the difficulty, that any act of baking, though for the use of Wolf's own family, would be a violation of the contract; and when the literal meaning of the expression is abandoned, no meaning can so naturally be attached to the language, as that which I have mentioned.

What, then, is implied, by recommencing or re-establishing the business of baking or selling bread? Let the well known use of language answer this question.

By recommencing the business of baking, in New-Haven, I understand, not only baking flour, and selling the bread baked, but this must be done with a view of carrying on the business, either for an indefinite, or some considerable space of time. If a lawyer, passing from Boston to Washington, to attend the Supreme Court of the United States, should stop at New-Haven, for a day, and while there, at the request of a fellow passenger, should appear before a Justice of the Peace to defend his friend from a charge of violating the Sabbath, or some other criminal accusation, no one would think of saying, that he had commenced practice there, or established himself in the practice of law, at New-Haven. The act is single; and practising law in New-Haven, would be foreign to his intention. No one would say, in ordinary parlance, that if a merchant of Hartford, on his way to New-York, should sell a cargo of lumber in New-Haven, that by doing this, he had set up or commenced the business of merchandize in the latter place. The very term of "setting up business,” denotes something more than a single act of professional or mechanical employment, or a single instance of buying or selling; and something more than a temporary stay of a few days, without any intention of pursuing the employment. Had Wolf come to New-Haven, with a view of carrying on the business there, either for an indefinite or any considerable time, and had actually baked and sold bread, though but a single loaf, previous to the expiration of the three years, I have no doubt it would have been a breach of the contract; for the business may properly be said to be commenced, though very little was done, provided that little was with a view of continuing the business.

It is said, that this contract secures the New-Haven market for bread to the defendants, against any interference whatever of Jacob Wolf; and as the note cannot be apportioned, according to the injury received, though that injury is small, that the plaintiffs can recover nothing.

In reply to this argument, let it be observed, that the extent of the security, which the defendants have against Wolf’s interference in the bread market, depends upon the meaning of the contract, which we have endeavoured to ascertain. We have endeavoured to shew, that this security consists, in Wolf’s not being allowed to recommence or re-establish the "baking business;" and that the acts of Wolf do not constitute, a recommencement of the business within the meaning of the contract. No doubt, the construction, which I have given the contract, affords to the defendants all the security against Jacob Wolf’s interference, which any rational man would think necessary to provide. Whether the construction, which has been adopted, be correct or not, depends on the terms of the contract, and the reasons employed in favour of the construction given to it. To assume, therefore, that the defendants are secured against the least interference of Jacob Wolf, by selling any quantity of bread, under any circumstances, in New-Haven, during the three years, is taking for granted that which is not conceded; and which is not true, unless my construction of the contract is erroneous.

I have endeavoured to shew, that the recommencement of baking, or selling bread, must mean the same thing as the business or employment of baking or selling bread; that no person can properly be said to commence such a business or trade in a particular place, unless it is done with an intention, of prosecuting it, either for an indefinite or some considerable space of time; and if such is the intent, that it matters not whether he does much or little business; but that a few acts of baking and selling bread, without any view of prosecuting the employment, but with a direct view of discontinuing it, after a few days, does not constitute a recommencement of the baking business within the true spirit and meaning of the contract; and being of this opinion, I would not advise a new trial.

Peters and Brainard, Js. were of the same opinion.

New trial not to be granted.  