
    Monnett v. Monnett, Adm’r.
    
      Written instruments — Interpretation of — When oral testimony admissible to aid, in — Pleadings—Practice.
    M. executed and delivered to T. J. M. a written instrument, the terms of which are, “the Woolen Mill Company, of Bucyrus, Ohio, having sold to M. one-half of the Woolen Mill property for the sum of seven thousand five hundred dollars, two thousand five hundred dollars to be paid April 1,1877, the other five thousand dollars with the following provisions: after M. receives dividends to the amount of ten per cent, on the money he puts into the mills, T. J. M. is to receive dividends as interest on the five thousand dollars above named pro rata with the firm for the term of five years, and if the mills do not pay dividends up to ten per cent, on the money put in by M. at the expiration of five years, he may continue the same conditions until they do.” Held:
    
    1. That, within the rules of evidence, which forbid oral testimony to contradict or vary the terms of written agreements, but permit such testimony to prove the circumstances under which they were made, to enable the courts to put themselves in the place of the parties, with all the information possessed by them, the better to understand the terms employed in the contract, and arrive at the intention of the parties, it is competent to show that the Woolen Mill Company, of Bucy- » rus, Ohio, was the name of a co-partnership which consisted of T. J. M. and another person, who, at the date of the instrument, were the owners of the Woolen Mill property referred to; that the half thereof stated in the instrument as having been sold to M., was the plaintiff’s undivided interest in the property, and that the other co-partner’s undivided interest, was, about that time, sold to another person for the like price; also, that after M. executed the instrument, and delivered the same to T. J. M., he paid to him the twenty-five hundred dollars therein stipulated to be paid April 1, 1877, and that thereupon T. J. M. and his co-partner united in a deed of conveyance to M. and the -other purchaser, the consideration therein expressed being fifteen thousand dollars.
    
      % That the purchase price of T. J. M.’s undivided interest in the property, is seven thousand five hundred dollars, to be paid him by M., the purchaser ; twenty-five hundred dollars thereof to be paid April 1, 1877, but the other five thousand dollars not until the expiration of five years, during which time, T. J. M. is to receive as interest thereon, a share of the dividends remaining after M. shall receive dividends earned by the mill equal to ten per cent, on the amount invested by him in the mill; if the dividends do not equal that amount, the provision for the payment of interest to T. J. M. fails, which enables M. to retain the five thousand dollars of the purchase-money for five years without interest, and to continue, after the expiration of that period, to retain it on the same conditions as to interest, until the mill shall pay dividends equal to ten per cent, on his investment. But the principal of five thousand dollars is payable in any event at tbe end of live years from the date of the instrument, unless M. should then elect to continue the conditions in regard to interest; and a sale by him before that time, of his interest in the property, is a conclusive election not to do so, whereupon the principal becomes payable absolutely.
    3. That in an action brought on the instrument by T. J. M., against M.’s administrators, to recover the. five thousand dollars, where the reformation of the instrument is not sought by the defendants, and their pleadings do not entitle them to such relief, parol evidence is inadmissible to prove that the twenty-five hundred dollars stipulated to be paid April 1, 1877, was the full purchase price of the property, or that the plaintiff was to be paid no part of the five thousand dollars, unless the net earnings of the mill should exceed ten per cent, on the amount of money invested in the mill by M.
    4. In the trial of such action, the interpretation of the instrument belongs to the court, and it is error to submit its construction to the jury.
    (Decided May 22, 1888)
    Error to the Circuit Court of Crawford County.
    The plaintiff in error, who was plaintiff below, on the 20th day of May, 1882, commenced his action in the Court of Common Pleas of Crawford County, against the administrators of the estate of Abraham Monnett, deceased, upon the following written instrument:
    “ Bucyrus, Ohio, February 22, 1877.
    “The Woolen Mill Company of Bucyrus, Ohio, having sold to A. Monnett, of Marion County, Ohio, one-half of Woolen Mill Property, for the sum of seven thousand five hundred dollars ($7,500.00), two thousand five hundred dollars ($2,500.00) to be paid April 1st, 1877, the other five thousand dollars ($5,000.00) with the following provisions:
    “After the above A. Monnett receives dividends to the amount of ten per cent, on the money he puts into mill and manufactures, T. J. Monnett is to receive dividends, as interest on the five thousand dollars ($5,000.00) above named, pro rata with the firm, for the term of five years, and if the mills do not pay dividends up to ten per cent, on the money put in by A. Monnett above-named, at the expiration of the five years, he ■may continue the same conditions until they do.
    “A. Monnett.”
    
      Endorsed — “ Received on the within article two thousand five hundred dollars. April 1st, 1877.”
    
      The case made by the petition with the amendments is, that the Woolen Mill Company mentioned in the writing, was at its date the name of a co.-partnership, consisting of the plaintiff and James G. Frazier, who were the owners of the Woolen Mill property. The plaintiff sold his undivided interest in the property, to Abraham Monnett, for the sum of seven thous- and five hundred dollars, and Abraham Monnett executed and delivered to him the written instrument sued on. . About the same time, Frazier’s undivided interest in the property was sold to Quincy A. Rouse and William Rouse; and afterwards on the 2nd day of April, 1877, the plaintiff and Frazier, by their joint deed, conveyed the whole of the property to the purchasers, the consideration therein named being fifteen thousand dollars. The Rouses paid seven thousand five hundred dollars, their half of the purchase-price, and Abraham Monnett, in pursuance of his written obligation, paid the plaintiff the two thousand five hundred dollars, which by its terms, became due April 1st, 1877, and which is credited thereon. In April, 1878, Abi-aham Monnett sold and conveyed his undivided half of the property, to Horace Rouse, whereby, it is claimed, ho put it out of his power to further comply with the stipulations of his written agreement, and, after the expiration of five years from its date,- the plaintiff brought his action against Abraham Monnett’s administrators (he in the meantime having died), to recover the five thousand dollars alleged to be due, together with interest from April 1st, 1877. Before the commencement of the action, a claim therefor, duly authenticated, was presented to the administrators for allowance, which was by them rejected.
    Four answers were filed by the defendants, but the real defense, and the only one made at the trial, was that contained in the second paragraph of the amended answer, which avers that the written instrument sued on “is ambiguous and uncertain, and does not clearly set out the true agreement made by said parties; that the true agreement made by said parties and intended to be expressed by said written memorandum, was as follows: Plaintiff sold to said Abraham Monnett his interest in the Woolen Mill property, for the sum of twenty-five hundred dollars, to be paid, and which was, in fact, paid by said Abraham Monnett on April 1st, 1877, which sum was in full of the purchase-price thereof; but plaintiff retained a conditional interest in the earnings of said Woolen Mill as follows: It was agreed that said Abraham Monnett was first to receive dividends out of the net earnings and profits of said Woolen Mills, equal to ten per cent, on the amount of money by him put into said ■ mill and manufactures; after which plaintiff was to receive as his interest in the net earnings and profits thereof, a pro rata dividend thereof with the firm for five years (to the amount of five thousand dollars), provided said Woolen Mills earbed that amount in excess bf the ten per cent, first to be paid to said Abraham Monnett, but if said W oolen Mill did not earn an excess over said ten per cent, to be paid to said Abraham Monnett, then plaintiff was to receive nothing, nor have no other or further interest therein.”
    The plaintiff replied, controverting the allegations of the answer, and without objection by either party the case was tried to a jury. A verdict was returned for the defendant, and a motion for a. new trial having been overruled, a bill of exceptions was taken, purporting to set out all of the evidence and charge of the court, from which it appears, that the evidence offered by the defendant on the trial in support of his defense, consisted of conversations the witnesses claimed to have had with the plaintiff, concerning the terms of the sale to Abraham Monnett, and some testimony relating to the financial condition and business habits of Abraham and the plaintiff. This evidence was permitted to be given over the plaintiff’s objection, and he duly excepted.
    The court in its charge, after stating the issues made by the pleadings, said to the jury :
    
      “ The court finds that the said written memorandum attached to the plaintiff’s petition, marked ‘ Exhibit A,’ is ambiguous and uncertain in its terms and conditions, and submits the construction thereof to the jury. In giving construction to the same the intention of the parties will govern. The contract is what Abraham Monnett and • Thomas J. Monnett agreed and intended it to be.”
    To this the plaintiff excepted.
    The court further charged the jury, “ that the plaintiff must make out his case by a fair preponderance of the evidence,” and also that “ the defendants must make out their case by a fair preponderance of the evidence;” and “ if the contract is as claimed by the plaintiff the verdict must be for the plaintiff,” and “ if the contract is as claimed by the defendants the verdict must be for the defendants.”
    Judgment was entered on the verdict and the plaintiff prosecuted error to the circuit court, where the j udgment was affirmed, and thereupon filed his petition in error in this court.
    
      8. R. Harris, Jacob Scroggs and F. 8. Monnett, for plaintiff in error.
    
      Finley, Eaton & Bennett, W. Z. Davis and J. G. Tobias, for defendants in error.
   Williams, J.

The written instrument on which the plaintiff brought his action, is either capable of construction, or it is void for uncertainty; for, if the terms employed by the parties, though intended for a contract, be so incomplete or ambiguous that, after applying to them all the helps which the rules of interpretation afford and permit, they are still so uncertain, that what the parties mutually assented to, cannot be ascertained, the consequence is the same as when there is no assent; there is no contract. But,'if possible with such helps, they should be given such construction as will uphold the contract, and give effect to the intention of the parties, rather than one which renders them void for uncertainty; and to avoid the latter alternative, the words will be taken most strongly against the person employing them, especially where he is the only party subscribing the contract. The words of obligation in a contract, are interpreted most strongly against the obligor, for it is presumed that he used those most favorable to his interests; and all doubtful terms or ambiguous words are to be construed against him. He who speaks, should speak plainly, or the other party may explain to his own advantage.” State v. Worthington, 7 Ohio, pt. 1, p. 171.

Though the rules of evidence exclude oral testimony to contradict or vary the terms of written agreements, they permit proof of the circumstances under which they were made, the surroundings of the parties, their relations to each other, and to the subject-matter of the contract, to enable the courts called upon to interpret them, to put themselves in the place of the parties, with all the information possessed by them, the better to understand the terms employed in the contract, arrive at the intention of .the parties, and give effect to the agreement.

Consistently with these rules, it was without objection, shown on the trial, that the “Woolen Mill Company of Bucyrus ” was the name of a co-partnership, which consisted of the plaintiff and another, who, at the date of instrument sued on, were the owners of the Woolen Mill property therein mentioned; and that the half of the property therein stated as having been sold to Abraham Monnett, was the plaintiff’s undivided interest in it. The answer admits this, for it avers that “ the plaintiff sold to said Abraham Monnett his interest in the said Woolen Mill property.” It was also shown, and not controverted, that Abraham Monnett executed the written obligation, delivered the same to the plaintiff, and paid to him the twenty-five hundred dollars stipulated to be paid April 1st, 1877, and that a deed of conveyance was soon thereafter executed to Abraham Mon-nett, vesting in him the undivided half of the property, which he afterward sold and conveyed to another person.

Aided by these extrinsic facts, no serious difficulty is- encountered in the construction of the instrument. It recites, that the sale was for the sum of seven thousand five hundred dollars, and provides that twenty-five hundred dollars thereof is to be paid April 1st, 1877. It is true, it does not state that Abraham Monnett is to pay it, nor contain any direct promise to pay to the plaintiff. But since Abraham Mon-nett purchased the.property of the plaintiff, and executed and delivered to him the written instrument, stating the purchase by him, and the terms and amounts of the payments tberefor, it would be idle to say, that the twenty-five hundred dollars was not to be paid by Abraham Monnett to the plaintiff. About this there -is no controversy, and accordingly Abraham Monnett, contemporaneously with the execution of the deed to him, paid to the plaintiff this twenty-five hundred dollars. The obligation to pay the balance of the purchase price of the property is equally clear. Whatever of uncertainty there is, relates to the time and mode of payment. The language of the instrument, two thousand five hundred dollars to be paid April 1st, 1877, the other five thousand dollars with the following provisions,” plainly imports that the five thousand dollars is to be paid, as well as the twenty-five hundred dollars, and by the same pei’son, and to the same person, except as otherwise controlled by the provisions which follow. There is nothing in those provisions which discharges the obligation to pay the five thousand dollars, or extinguishes the right of the plaintiff to receive it. They are not only consistent with, but confirm and accentuate, both the obligation of Abraham Monnett to pay, and the right of the plaintiff to receive payment. They provide, that after Abraham Monnett receives dividends to the amount often per ■cent, on the money by him invested in the mill, the plaintiff is to receive a share of the remaining dividends, as interest ■on the five thousand dollars, for the term of five' years. 'The right of the plaintiff to the interest in the event provided for, would seem to establish his title to the principal :also; and, as A braham Monnett is the party binding himself to that obligation, the duty became his, to pay the plaintiff the interest, as it accrued according to its terms. If the mills should not pay a dividend of ten per cent, on the money invested by Abraham Monnett, the provision for the payment of interest to the plaintiff fails; the result of which is, that Abraham Monnett is enabled to retain the five thousand dollars of purchase money for the property, for the five years without interest, and he might, at the expiration of that period, continue to retain it, on the same conditions as to interest, until the mill should pay dividends equal to ten per cent, on his investment. Under these stipulations, the principal of five thousand dollars, became due in any event at the expiration of five years from the date of the obligation, unless Abraham Monnett should then elect to continue the conditions in regard to the interest therein set forth,which he did not do. On the contrary, he sold and conveyed away his undivided half of the property, ceased to have any interest in, or control over it, and thus put it out of his power to perform the stipulations for the payment of interest, which were beneficial to the plaintiff, and which no doubt constituted the consideration, at least in part, for the credit given on that part of the purchase price of the property. This was a conclusive election, on the part of Abraham Monnett, not to prolong the time for the payment of the five thousand dollars on the conditions specified, and the money became payable absolutely.

This, we think, is the proper interpretation of the obligation, aided by such extrinsic facts, either admitted by the pleadings, or not controverted on the trial, as, consistently with the rules of evidence, may be properly considered in giving construction to it; and the trial court err§d in submitting its construction to the jury. The extrinsic circumstances material to its construction, were undispui ed and definitely ascertained; and if they were not, it was still the duty of the court to give construction to the instrument, for the construction of all written instruments belongs to the court alone; and it is the duty of the jury to take the construction from the court, either absolutely, if there be no words to be construed, as words of art, or phrases used in commerce, and no surrounding circumstances to be ascertained; or conditionally, when those words or circumstances are necessarily referred to them.” Neilson v. Hofford, 8 M. & M. 806, 823.

2. It follows, also, that the court erred in admitting the evidence, given by the defendants, to contradict the terms of the instrument, and engraft upon it others it did not contain, unless such evidence was competent, under the pleadings, with the view to its reformation.

W e know that the rules, which forbid the introduction of parol evidence to control written contracts, do not exclude proof of the consideration, or of promises or agreements wholly collateral to the writing, like agreements between sureties or joint promisors; nor apply, where express reference is made in the written instrument, to a parol contract, or where the written instrument does not purport to be a complete expression of the contract, or evidently appears to express only some part of it, and that which is sought to be proven, does not contradict its terms, but is consistent with them. But the evidence admitted in this case, does not fall within either of these classes. Its purpose and tendency were, to prove that the instrument did not contain the true agreement between the parties, and to establish a contract materially different from that expressed by it. Such evidence can not be admitted, except when the reformation of the instrument is sought in equity. Holzworth v. Koch, 26 Ohio St. 33; Neil v. The Board of Trustees, 31 Ohio St. 15 ; Denton v. Whitney, 31 Ohio St. 89. And the party asking its reformation, must by proper allegations in his pleading, show his right to such relief. White v. Denman, 1 Ohio St. 110. The defendants below neither sought the remedy, nor do their pleadings entitle them to that relief

There being no dispute about the facts which entitle the plaintiff to judgment, there is no reason why the case should not now be finally disposed of.

Judgments of the circuit court, and court of common pleas reversed, and j udgment for the plaintiff.  