Opinion
(June Term, 1860.)
Where A. and B. entered into bond to abide by and perform the award of arbitrators chosen to decide certain matters in controversy between them respecting the cleaning out of a canal, and the arbitrators awarded that A. "should pay one-sixth part of the expense of cleaning out" said canal, it was Held that A.'s liability did not extend to the expense of deepening the canal.
(536) DEBT upon a bond given to abide by and perform an award, tried before Saunders, J., at the last Spring Term of PITT.
W. B. Rodman and McRae for plaintiff.
W. A. Jenkins for defendant.
Breach, that defendant failed to perform the award. The following is a copy of the bond and award:
Know all men by these presents, that I, Thomas M. Wiggins, of the county of Pitt and State of North Carolina, am held and firmly bound unto Jesse Noble, John P. Quinnerlly, William A. Pugh, and Lewis B. Pugh, all of the aforesaid county and State, in the sum of $1,000, good and lawful money of the United States, to be paid to the said Jesse Noble, John P. Quinnerlly, William A. Pugh, and Lewis B. Pugh, their heirs, administrators, executors, and assigns, to which payment, well and truly to be made, I do bind myself, heirs, executors and administrators, and every of them, firmly by these presents, sealed with my hand and seal, dated 3d December, 1853.
The condition of this obligation is such that if the above bound Thomas M. Wiggins should stand to and abide by the decision made by Churchill Moore and Benjamin Hazelton about clearing out the canal in Bixley's swamp, from the mouth up to said Thomas M. Wiggins' ditch that runs across the public road, then this obligation to be void and of no effect, or else to remain in full force and virtue.
In witness whereof I hereunto set my hand and affix my seal, this the day and date above written. THOMAS M. WIGGINS. [SEAL] To all and to whom these presents shall come, or may come — Greeting:
We, Benjamin Hazelton and Churchill Moore, to whom was submitted, as arbitrators, the matters in controversy existing between Jesse Noble, Lewis B. Pugh, William A. Pugh, and John P. Quinnerlly, of the one part, and Thomas M. Wiggins of the other part, as by the condition of their respective bonds of submission, executed by the said parties respectively, each unto the other, and bearing date 3 December, 1853, more fully appears.
Now, therefore, know ye that we, the arbitrators mentioned in (537) said bonds, as chosen by consent of all interested, and having heard the allegations of the parties and examined the matters in controversy by them submitted, do make this award in writing, viz.: Thomas M. Wiggins is to pay one-sixth part of all expense in clearing out both canals, beginning at the head of Johnson's millpond, and to continue up both canals as far as said Thomas M. Wiggins' big ditch, then said Wiggins goes up his ditch on his own land as far as he chooses, until circumstances change in the neighborhood, or many other canals be cut in said canal; also, we allow said Wiggins the privilege of furnishing his own hands to work out his one-sixth part, if he chooses.
In witness whereof we hereunto set our hands and seals, 3 December, 1853. BENJAMIN HAZELTON. [SEAL] CHURCHILL MOORE. [SEAL]
The execution of the bond and award were admitted. The plaintiff proved notice and refusal of the defendant to work. The plaintiff went to work in August, 1858, and cleared out and deepened the canal in order to carry out the original design of cutting it. Cost, $420.
The plaintiff proved a demand and refusal of defendant to pay the one-sixth part, according to the award. The witness, on his cross-examination, stated that the deepening was necessary to get the fall; that the canal was cut deeper than it originally had been from the mouth up, but not more so than was necessary. That the deepening had considerably added to the expense of clearing out. Defendant contended that he was not liable for any part of the expense of deepening. The court being of opinion that the words to "clear out" would include the expense of deepening, so instructed the jury, who found their verdict accordingly.
Judgment for the plaintiff. Appeal by defendant.
The case turns upon the meaning of the words (538) "clear out the canal," as used in the bond and award. The literal meaning is to "clean out," or to remove all extraneous matter, such as trees that may have fallen in, or dirt by the caving in of the bank, or grass and weeds and any other substances that may have accumulated and obstructed the flow of the water, so as to restore it to its original condition and make it the same as when it was new. We are to be governed by the literal meaning of the words which parties make use of to express their intention, unless there be something in the instrument or the nature of the subject-matter to authorize a construction by which the meaning is extended. In this instance there is nothing to extend the meaning so as to include deepening! Admit that the canal, as at first made, was not deep enough, and did not answer the purpose of draining to the extent originally contemplated, what is there in the bond to show that the defendant was satisfied of the fact that the canal ought to be made deeper, or was not content with the benefit which he derived from it as it was made at first, and was willing to join in the expense of making it deeper? If the words include deepening, they could in like manner be made to include widening, and the absence of any stipulation for the purpose of ascertaining whether it was necessary in order to effect the mutual purpose of the parties to make the canal deeper or wider, and, if so, to what extent, proves that the defendant only intended to bind himself for a portion of the expenditure necessary in order to restore the canal to its original condition, and used the words "clear out" in their literal sense.
PER CURIAM. Venire de novo.
(539) (539)