Opinion
Argued April 24, 1872
Decided May 21, 1872
G.W. Soren for the appellant.
Henry Nicoll for the respondents.
We are of opinion that the evidence was sufficient to sustain the finding of the referee, that the letter of Sept. 11, 1866, constituted the contract between the parties. Although the resolution of the board of directors of the defendant, ratifying the purchase of the steamship by Mr. Webb, on the terms and conditions set forth in the letter, may not have been communicated to the plaintiffs, yet, after the receipt of the letter by Mr. Webb, the defendant took possession of the vessel without any dissent from the terms stated in the letter. This constituted an acceptance of and acquiescence in the terms expressed in the letter, and the plaintiffs had the right to rely upon it as an assent to those terms. The resolution was competent evidence of the authority of Mr. Webb.
The clause of the letter which states that the defendant is to have all the benefit which the contracts with the engine makers and the builder bestow, in regard to work remaining to be done about the engines and hull, is obscure and ambiguous. Facts existing at the time of the making of the contract may, therefore, be properly considered, for the purpose of interpreting this language; but no evidence of the language employed by the parties in making the contract can be resorted to, except that which is furnished by the writing itself. (1 Green. Ev., § 277.) The referee, therefore, properly excluded evidence of verbal agreements preceding the writing of the letter.
The construction of the clause claimed by the defendant is that it was an undertaking on the part of the plaintiffs that all work on the vessel called for by the contracts of the engine makers and builder, and undone at the time of the sale, should be completed. In no other manner, it is contended, could the defendant obtain all the benefit which the contracts bestowed, in regard to such work. On the other hand the plaintiffs claim that the clause imports no obligation on their part to answer for the default of the engine makers and builder, but entitled the defendant only to the benefit of the contracts so far as they remained unperformed, and that the plaintiffs did not assume any liability beyond that of paying what remained unpaid of the contract price of the work.
The referee adopted the construction claimed by the plaintiffs. After a careful examination of the whole letter, in view of the facts existing and known to the parties at the time, we think that the construction adopted by the referee was correct, and that the benefit intended to be conferred was the benefit of the contracts, and not of the work therein stipulated to be done.
The judgment should, therefore, be affirmed, with costs.
All concur.
Judgment affirmed.