Opinion
March, 1908.
Sternberg Jacobson, for appellant.
Morris Cooper, for respondent.
The contract between the parties for the exchange of real estate contained the clause: "The chandeliers, gas fixtures, ranges, heating and hot water apparatus, water closets, bath-tubs and other plumbing and all personal property belonging to the parties now on said premises are to be included in the sale and in the warranty above set forth." The words "and all personal property belonging to the parties" were written in a blank space provided, the other words being part of the printed form; and the question presented by the plaintiff's action for the value of two ranges, title to which was, as it developed, not in the defendant, turns upon the meaning to be given to these written words. As we read the contract, the intention of the parties was that title to the enumerated chattels was warranted; otherwise the clause would be made to contain words of apparently solemn import but with absolutely no meaning. The "warranty" which was to cover these chattels was a warranty of title, and nothing else, as appears from the preceding provisions of the contract; yet, if the written words are to characterize the whole clause, the parties only warranted title to specified things upon the condition that they had title. Such a construction leads to some absurdity; and the reasonable meaning of the clause, giving effect to all of its provisions, is, as we take it, that the words "all personal property belonging to the parties," related to chattels not directly classified, and as to the ownership of which there might be some question of doubt. It may be observed that the clause was for a mutual warranty and that the language was chosen by both parties. The words were written in upon a space left, apparently, for the addition of further property; and, since harmony of meaning is reached only by a construction of the contract which limits these words to this purpose, such must properly be taken to have been the intention of the parties.
The judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.
GILDERSLEEVE and MacLEAN, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.