It is now argued that because the thoughts, intent, or understanding of one party, preceding the execution of a written contract, may, under some circumstances, be used to apply or defeat the writing, therefore it was error to conclude that in this case such evidence was not admissible to aid in construing this writing.
As a basis for the position now taken by the plaintiff, the rules given by the American Law Institute are quoted as follows. If, after applying certain standards of interpretation the writing is ambiguous, "the rules governing the interpretation of agreements which have not been integrated are applicable." Restatement, Contracts, s. 231. those rules are: "(a) Where a party manifests his intention ambiguously and neither party knows or has reason to know that the other party may give a different meaning to the manifestation, it is given the meaning in favor of each party that he intended it should bear; the same rule is applicable where both parties know or have reason to know of such an uncertainty or ambiguity; and (b) where a party manifests his intention ambiguously, knowing or having reason to know that the manifestation may reasonably bear more than one meaning, and the other party believes it to bear one of those meanings, having no reason to know that it may bear another, that meaning is given to it." Ib., s. 233.
These rules afford no ground for the present claim. They declare that A may show his understanding if B knew that he had manifested himself ambiguously and that A might understand B's expression as he did. They also state that if neither, or if both, knew the expression to be ambiguous, each may insist upon his own meaning. The application *Page 431 of the first rule gives what may be called the innocent party a right to have the contract enforced according to his understanding of it. The second relates to instances where there is no more responsibility for faulty expression upon one party than upon the other. In such a situation the result is that there is no contract because mutual understanding is lacking.
Neither of these situations is presented here. The expressing here was done by the party who seeks to use his understanding to qualify it. He is in no position to claim the advantage given to one who acted upon the language of another.
If the deed were to be regarded as the mutual expression of thoughts of the grantor and grantee, the most that could be claimed would be that neither of them knew it was ambiguous. This would not give to either of them the right to impose his understanding upon the other; but merely to show that there had been no meeting of the minds, and hence no contract. The present proceeding is not one for rescission or reformation. The plaintiff's claim is that his deed should bear a certain interpretation. In this situation the rules quoted do not suggest any ground upon which he can use his understanding to affect the interpretation of the document. While these sections do not state in positive form that, except as therein detailed, the undisclosed understanding of one party is immaterial and therefore, inadmissible, in another section there referred to the negation is expressed. Ib., s. 71.
There is also in the present case the additional factor that the property has passed from the original grantee to an innocent purchaser for value, who was not a party to the original transaction.
A large number of New Hampshire cases have been cited, apparently with the idea that they in some way substantiate the plaintiff's claim. Nothing is found in any of them to warrant such a conclusion. None of them relate to an attempt by one party to impose upon the other an unexpressed view of the meaning of the language used. None suggests that such divergent, undisclosed understandings may be put in competition with each other to aid in solving the meaning of dubious language.
The statement in the head note to Smart v. Huckins, 82 N.H. 342, that an ambiguity "in a deed may be resolved by competent extrinsic evidence of the intention of the parties," is correct. But it by no means states or implies that the undisclosed intention of one party alone is such competent evidence. Such a perversion of the statement of the rule lies at the foundation of all the plaintiff's argument upon this question. *Page 432
The claim is made that the construction of the deed in favor of the defendant would make the granted premises include part of a passage way in which the grantor had theretofore conveyed rights to one Weed. It is true that the premises so described include a part of the passage way, but the claim that rights therein had theretofore been conveyed to Weed has no foundation in fact. The Weed lot is on the opposite side of the tract bounded westerly by Strafford avenue and easterly upon the Madbury road. It is described as bounded northerly by "a proposed street 40 feet in width, now partially constructed," and a right is given to "use said proposed street and to use the alley way in the rear of said lot 20 feet in width." The alley and the proposed street join at the corner of the premises and lead directly to the Madbury road, upon which the lot faces. The locus lies southerly of the Weed lot and overlaps the alley way some distance below the Weed premises. It is evident that there was no grant to Weed of any rights in the alley at that point. It is therefore unnecessary to consider whether the fact that a grantor had theretofore. sold and conveyed a part of the premises in question could be used as a factor turning the construction of his later deed in his favor.
It is again urged that the designation of the southeasterly corner as 145 feet from Strafford avenue is an item of description to be preferred over that which declares that it lies easterly of the Scott corner and that there is a line from it to the Scott corner which is a prolongation of the southerly line of other land of the grantee. It is said that the rule invoked is broader than the statement that monuments prevail over courses and distances, and that its only limitation is that what is more certain prevails over that which is less so. This is true, but we are unable to apply it as the plaintiff does. It is to be noted in passing that the item he relies upon is of the less preferred class as the rule is commonly stated. But all the items lack reference to any physical object as the southeasterly corner. Each of them states some fact as descriptive thereof. We are unable to see wherein one is to be preferred over another. The statement that it is 145 feet from the avenue is not more definite than that there is a line thence westerly to the Scott corner and that this line is a prolongation of the southerly line of other land of the grantee.
It is also urged that as a part of the disputed tract was not used by the original grantee, because it was low, it follows that it was of no value to her; and that since it is claimed to be valuable to the grantor, as part of a passage way, there is a legitimate inference that there was no intent to convey it. The argument overlooks essential facts. *Page 433 This land was situate in the midst of a developing community. Whilst the first grantee might have no immediate use for land in the rear, which needed filling, it might prove valuable for use in connection with the granted premises as developments proceeded. Subsequent events show that it has already become so in fact. The sale was not for a day, but for all time.
Further argument is advanced upon the theory that if the interpretation adopted were applied to other parts of the premises the defendant would gain more land, to which it has made no claim. It may be that the defendant has such an unasserted right. Whether it has or has not does not affect the conclusion here.
Former result affirmed.
All concurred.