In Domeyer v. O'Connell, the Illinois Court said that: 364 Ill. 467, 4 N.E.2d 830, 108 A.L.R. 476. "* * * absence of a provision from a contract is evidence of an intention to exclude such provision.
However, to construe this lease as the defendant contends, it would be necessary to disregard the clear and unambiguous language of the instrument itself, and that we cannot do. As this court stated in Wm. J. Lemp Brewing Co. v. Ems Brewing Co., 7 Cir., 164 F.2d 290, 292: "The object of construction is to ascertain the intention which the parties have expressed in the language of their contract, and where there is no ambiguity in the terms used, the instrument itself is the only criterion of the intention of the parties." See also Buchanan v. Swift, 7 Cir., 130 F.2d 483, 484-485; Domeyer v. O'Connell, 364 Ill. 467, 470, 4 N.E.2d 830, 108 A.L.R. 476. Here the tax clause of the lease provides in unequivocal language that the lessee shall bear the cost of any additional taxes arising from an increase in the assessed valuation of the property over the valuations for certain base years; and the meaning of "assessed valuation" is explicitly stated to be the value "upon which taxes are extended."
The Supreme Court of Illinois has stated, Clodfeeter v. Van Fossan, 394 Ill. 29, 67 N.E.2d 182, that if the language of a contract is plain and unambiguous, oral testimony cannot be heard to contradict or vary its meaning or to give it a meaning inconsistent with the language used in the instrument. They cite as authority Domeyer v. O'Connell, 364 Ill. 467, 4 N.E.2d 830, 108 A.L.R. 476, one of the cases cited by the defendant. We find no error in the rulings of the trial court in this regard.
Not only did plaintiff by the contract divest himself of all title, claim and interest in such drawings and designs, but also in the names "Varga," "Varga Girl," "Varga Esquire," when used in connection therewith. Of the many cases where it has been sought to engraft an implied condition upon the terms of a written instrument, we like the rule announced in Domeyer v. O'Connell, 364 Ill. 467, at page 470, 4 N.E.2d 830, 832, 108 A.L.R. 476, where the language used is pertinent to the instant situation. The court stated:
Where a written contract purports on its face to be a complete expression of the whole agreement it is presumed that the parties introduced into it every material item and term, and in construing it, no words can be added to the contract so as to change the plain meaning of the parties as expressed therein. Green v. Ashland State Bank, 346 Ill. 174, 182, 178 N.E. 468; Westinghouse Electric Elevator Co. v. LaSalle Monroe Building Corporation, 395 Ill. 429, 433, 70 N.E.2d 604; and Domeyer v. O'Connell, 364 Ill. 467, 4 N.E.2d 830, 180 A.L.R. 476. In the instant case no claim of fraud or overreaching is made or claimed.
The object of construction is to ascertain the intention of the parties. That intention is to be determined from the language used in the instrument and where there is no ambiguity in the language used, from the instrument alone may the intention of the parties be gathered, Domeyer v. O'Connell, 364 Ill. 467, 470, 4 N.E.2d 830, 108 A.L.R. 476. We must resort to the words of the contract, it is true, "but not to one or a few of them, but to all of them as associated, and as well to the conditions to which they were addressed and intended to provide for," Merrill-Ruckgaber Co. v. United States, 241 U.S. 387, 36 S.Ct. 662, 664, 60 L.Ed. 1058; the contract must be construed as a whole and the intention collected from the entire instrument and not from detached portions, it being necessary to construe all its parts in order to determine the meaning of any particular part as well as the whole, 17 C.J.S., Contracts, § 297, thus to ascertain and make it speak the true intention and meaning of the parties at the time it was made, Adams v. Gordon, 265 Ill. 87, 91, 106 N.E. 517; that is to say, the court must take into consideration the entire scope of the contract and determine, if possible, from the terms of the contract, the legal effect thereof, Hartley v. Red Ball Transit Co., 344 Ill. 534, 540, 176 N.E. 751, and MacAndrews For
In determining the parties' intentions the court may consider the absence of a provision in the contract as evidence of an intention to exclude the provision. Domeyer v. O'Connell, 364 Ill. 467, 4 N.E.2d 830 (1936). L P contends the assignment of the E V construction contract was effectuated, not in a particular section specifically identifying the assignment of a cause of action, but rather in the general language of section 1.02. Reading the contract as a whole, the court finds the construction offered by L P is not tenable, based on the contract's detail in every other aspect of the transaction.
"An implied intention is one necessarily arising from language used or a situation created by such language." Domeyer v. O'Connell, 364 Ill. 467, 470, 4 N.E.2d 830, 832, 108 A.L.R. 476. Assuming as plaintiff maintains that the agreements are ambiguous then the court should look to the surrounding circumstances when the instruments were made to determine the intention of the parties.
But the right, if any, upon which this suit is based, depends upon a contract entered into in the State of Illinois and that contract is one guaranteeing the return of money placed in the possession of said partnership by the said petitioning creditor. Perhaps the leading case in the State of Illinois is that of Domeyer et al. v. William L. O'Connell, Receiver 364 Ill. 467, N.E. 2d 830, 108 A.L.R. 476. While the facts were somewhat different in that case than in the instant case under consideration, in the Domeyer Case, there was no guarantee of either the note or the receipt, while in the case under consideration, there was a guarantee of receipt but no guarantee upon the note.
The courts have uniformly held that the purchaser of a mortgage participation certificate was entitled to his proportionate share of the mortgage proceeds. Prudence Realization Corp. v. Geist, 316 U.S. 89, 62 S.Ct. 978, 86 L.Ed. 1293 (1942); Delatour v. Prudence Realization Corp., 167 F.2d 621 (2nd Cir. 1947); Coffey v. Lawman, 99 F.2d 245 (6th Cir. 1938); In re The Westover, Inc., 82 F.2d 177 (2nd Cir. 1936); Title Guarantee Trust Co. v. Mortgage Comm'n, 273 N.Y. 415, 7 N.E.2d 841 (1937); Domeyer v. O'Connell, 364 Ill. 467, 4 N.E.2d 830 (1936); Northern Bond Mortgage v. Cowell, 172 Wn. 217, 20 P.2d 11 (1933); Price v. Northern Bond Mortgage Co., 161 Wn. 690, 297 P. 786 (1931). Participation certificates have been enforced in a number of bankruptcy cases and receivership proceedings.