ON MOTION FOR REHEARING. (Filed January 22, 1932.) On petition for rehearing, counsel for plaintiff asserts that "the decision of this court decides, in effect, that if an ambiguity exists on the face of a contract, that is, if words are used which are ambiguous, the door is thrown wide open for oral testimony, and that, not only can the meaning of those words be explained, but that a collateral or independent contract may be proven, resting solely in parol, which operates to destroy the plain and unambiguous portions of the written contract." Such is not the effect of the decision.
The general rule contended for by plaintiff that "in order to let in evidence of a collateral agreement between the parties, such agreement must be consistent with the terms of the writing; if the evidence tends to vary or contradict the terms of the written agreement or to defeat its operation it cannot be received" (22 C.J. 1248), has no application to the facts presented by the record before us.
Here there was no attempt made to prove a collateral or independent contract. The court had before it a writing which did not contain all of the terms of the agreement, and, in consequence, it was required to resort to extrinsic facts for an explanation of the ambiguous phrase in order that the mutual intention of the parties, as it existed at the time of the execution of the writing, might be ascertained.
Under our statutes a contract must be so interpreted "as to give effect to the mutual intention of the parties as it existed at the time of contracting, so far as the same is ascertainable and lawful." (Sec. 7527, Rev. Codes 1921.) "Where a contract is partly written and partly printed * * * the written parts control the printed parts. * * * And if the two are absolutely repugnant, the latter must be so far disregarded." (Sec. 7542, Id.) "The language of a contract should be interpreted most strongly against the party who *Page 135 caused the uncertainty to exist." (Sec. 7545, Id.) "If the terms of a promise are in any respect ambiguous or uncertain, it must be interpreted in the sense in which the promisor believed, at the time of making it, that the promisee understood it." (Sec. 7540, Id.) "When an instrument consists partly of written words[6] and partly of a printed form, and the two are inconsistent, the former control the latter." (Sec. 10523, Id.) And when "the language of the instrument is not understood by the court, the evidence of persons * * * who understood the language, is admissible to declare * * * the meaning of the language." (Sec. 10524, Id.)
Under these rules of construction, the court properly received[7, 8] parol evidence to explain the ambiguous term employed in the writing, and there was ample evidence to sustain the conclusion that the transaction was a consignment and not a sale. The fact that the writing says, "Charge to Lewistown Electric Supply Company," is not inconsistent with a consignment. "Where the contract contains apt words both of sale and of agency, and its character therefore is ambiguous in this regard, reference may properly be had to declarations, acts and conduct of the parties, * * * to aid in the construction of the contract. * * * Where the order for goods is incomplete as a contract, and is consistent as well with the consignment as with a sale and the terms thereof may apply to either, it may be shown to have been given in response to a proposition to deliver the goods on consignment, and the consignee's subsequent acknowledgment that he received the goods on consignment for sale is admissible." (23 R.C.L., sec. 37, p. 1220. See, also, Deburghraeve v.Autenrieth, 24 Pa. Super. 267; Pocahontas Guano Co. v.Smith, 122 Va. 318, 94 S.E. 769; Virginia-Carolina ChemicalCo. v. Ruffin, 126 Miss. 80, 88 So. 500; Fulton MotorTruck Co. v. Gordon etc. Co., 105 Neb. 515, 181 N.W. 162;Bernadette, Joseph Co. v. Van Buren, 212 A.D. 702,209 N Y Supp. 559; Ries v. Pacific Fruit Produce Co.,50 Idaho, 140, 294 P. 336; Stein Double Cushion Tire Co. v. *Page 136 Fulton Co., (Tex.Civ.App.) 159 S.W. 1013; Hamilton v.Willing, 73 Tex. 603, 11 S.W. 843.)
Petition for rehearing is denied.
MR. CHIEF JUSTICE CALLAWAY and ASSOCIATE JUSTICES GALEN, ANGSTMAN and MATTHEWS concur.