It seems clear that when the parties appended to the original contract the agreement dated May 20, 1915, they intended to sell steers additional to those contracted to be sold in the first contract, and not to supply anything left out of the first contract by inadvertence. Did they intend that Hart agreed to sell all of his three year old steers over and above 900 head at $30 per head? If so, they could have easily said so. What they did say was that Hart thereby agreed to sell to Light and Jones all cut backs from cattle sold to same parties, and then again particularly describe them as all steers "three years old and up cut out from steers sold." This language is so plain that it cannot be construed to mean all the three year old steers over and above 900 head owned by Hart, and appellants do not plead mistake, so they are driven to admit that resort must be had to the original contract to ascertain what steers were sold, in order to determine to what steers the contract of May 20, 1915, relates. They, therefore, contend that in the first contract Hart bound himself to sell to appellants all of his steers three years old and up, and this contention is sustained in the majority opinion. In fact, it is held that such intention is so apparent that the trial court erred in holding the contract to be ambiguous. It is strange that if parties intended to contract for the sale of all three year old steers in a certain pasture, steers which had been inspected by the prospective buyers, and that they were to pay $45 a head for 900 head and $30 a head for the remainder, they could not have so provided in plain and unequivocal terms, and it would also be very unusual for parties to a contract to omit the consideration for about 300 head of cattle out of 1,200. It may be that by selecting certain portions of the contract and failing to give effect to others, such an intention can be deduced, but can it be said that a contract is unambiguous if it is necessary to ignore certain provisions in order to give it a definite meaning?
It is true that the first clause in the contract states that Hart agrees to sell 1,000 head of steers, more or less, three years old and up, and that the thirteenth and last clause states that the cattle sold are all of the cattle in the pasture and range of D. Hart of the classes referred to but these are not the only provisions, and if they be construed as making the contract, one for the sale of all steers three years old and up, the parties went to a lot of trouble for nothing. If they contracted to sell all the steers, then the only omission, according to the majority opinion, was the failure to state the price for the steers in excess of 900 head. It is true there is only one provision fixing the price of the steers three years old and up sold to Light and Jones, but that provision is explicit. It is found in paragraph 4, and says that second parties agree and bind themselves to pay to first party $45 per head for "each and every steer delivered under this contract." If the contract was for the sale of all the steers, then the price for all was fixed at $45 per head, but it is not stated in the subsequent agreement that any mistake was made in the original contract as to the price of some of the steers and that the parties seek to correct such mistake. If the contract was for the sale of all the steers, the provision for a 10 per cent. cut out of 1,000 head was superfluous, and the further provi sion that Light and Jones could virtually select the 1,000 head before being required to make the cut, if more than 1,000 should be delivered was also uncalled for. The fact that Light Jones only bound themselves to take 900 head as is shown in paragraph 12, also contradicts the theory that the first contract was for the sale of all the cattle, and that the parties omitted to state the price for those other than the 900. Again, if all of the steers were to be taken by Light Jones, there would be no occasion for the holding as many as 250 culls and for the cut to be made on the range. In view of all these provisions, is the contract clearly one for the sale of all the steers owned by Hart of the named class, or is it a contract for the sale of 1,000 head of steers, with a 10 per cent. cut, giving the buyers the right of selecting the 1,000 head before making the 10 per cent. cut as best they could, in view of the delivery being made in four or more bunches. It appears to me that the latter construction does less violence by far to the language of the contract than the one contended for by appellant.
I am unable to see any reason for subordinating the other provisions of the contract to the thirteenth paragraph. The following statements made by Mr. Elliott in his work *Page 744 on Contracts, §§ 1514, 1515, are deemed peculiarly applicable to this case:
"The actual contract of the parties must be deduced from the entire agreement and from all its provisions considered together, and not from specific provisions or fragmentary parts of the instrument, because the intention of the parties is not expressed by any single part or provision of the agreement, but by every part and term so construed, if possible, as to be consistent with every other part, and with the entire agreement, since the parties could not have intended apparently conflicting clauses in a contradictory sense. Effect must be given to all the provisions and parts of the contract where possible, and no part should be rejected unless absolutely repugnant to the general intent. * * * But while words or clauses in a contract apparently repugnant should be reconciled if it can be done by any reasonable construction, yet a proviso which is utterly repugnant to the body of the contract and irreconcilable with a former clause and repugnant to the general purpose and intent of the contract will be set aside or rejected; likewise, a subsequent clause, irreconcilable with a former clause and repugnant to the general purpose and intent of the contract, will be set aside or rejected."
That part of the thirteenth paragraph relied upon by appellants is repugnant to the general purpose and intent of the contract. The paragraph was probably inserted for the purpose of preventing Hart from removing from his pasture any steers inspected by appellants, and out of which these purchased were to be selected, and the language used is so inapt as to create a conflict between such provision and other provisions of the contract in which the cattle sold are described. In view of the fact that the other description of the cattle accords with the various provisions hereinbefore pointed out, that part of paragraph 13 relied on by appellants should probably be rejected on the theory that the draftsman erred in saying the "cattle sold under," instead of "the cattle described in." But, at any rate, it should not be held to control all the other provisions, for, to say the least, such an intention is not plainly apparent.
It is true that if it be held that Hart intended to let the buyers first cut the herd down to 1,000 head and then take 900 at $45 and 100 at $30, it would be reasonable for him to be willing to contract that those cut out in selecting the 1,000 head should also be sold for $30. But at the time of the contract the buyers might not have been willing to take them at that price, and even if Hart was making a concession, it must be remembered that he was avoiding the holding of cattle, and was making an agreement which was susceptible of the construction that he intended to eliminate all cutting and selecting, and just deliver, f. o. b. the 1,000 head of steers as he gathered them, and the buyers would pay him $45 per head for 900 and $30 per head for the other 100.
I have endeavored to show that the contention made in appellants' brief, and sustained in the first part of the majority opinion, is incorrect, and that the language of the contract bears out appellee's theory much more strongly than that of appellants. Appellee's contention is expressed in his brief as follows:
"We think it clear that what the parties intended by this contract was that Light Jones should top out of all of Hart's three year old and ups, 1,000 head, if he had more than 1.000 head, and this topped 1,000 head Light Jones were to buy, subject to a 10 per cent. cut therefrom. In the contingency that there were only 1,000 head of three year old and ups that could he tendered, these Light Jones were to take at $45 per head after cutting back 10 per cent., or 100 of them. If there were more than 1,000 head, the whole tenor of the original contract shows that Light Jones by the contract acquired the right to cull them out till they were reduced to 1,000 head. This 1,000 head they were to take at $45 per head, subject to the ten per cent. cut. Clearly, under the contract, they were only buying 1,000 head with a 10 per cent. cut from that 1,000 head. True they acquired the right to pick this 1,000 head out of all of Hart's three years old and up cattle that were on his range in Val Verde and Terrell counties."
However, appellee, while contending for his construction in argument in his brief, need only show that the contracts are ambiguous in order to sustain the judgment of the trial court, the jury having found that his construction of the contract expresses the contract actually made.
The theories advanced by the respective parties and contended for in their briefs, and also presumably before the jury, are supplemented in the opinion of the majority by an additional theory, which is considered to be deducible from the contract, and under which it is thought the judgment should be reversed. This theory is that if the original contract does not call for the sale of all the steers, then that it calls for the sale of only 900 head, and as it is not provided that there should be any cut backs out of said 900 head, the expressions used in the second contract should be given the meaning of steers cut away from the 900 head and be held to include all the remainder of the steers. Such a theory can only be supported by saying that, as appellants were only bound to take 900 head, the parties in making the second contract meant, by the expression "cattle sold," to say 900 head. Can it be said that such an intention is clearly apparent? I fail to find any portion of the original contract in which it describes the cattle sold as 900 head. The parties described the cattle sold as 1,000 head, more or less, which means approximately 1,000 head. They said in paragraph 2 that Light Jones should have a cut of 10 per cent. on all cattle delivered, up to 1,000 head, and in paragraph 13 that the cattle sold were all the cattle, and also that Light Jones were bound to take 900 head if enough were delivered to make such number after the 10 per cent. cut had been made. If the steers had risen in value to $60 a head between the date of the contract and date of deliveries, and the second contract had not been made, appellee would doubtless have ascertained that he had sold 1,000 head *Page 745 of steers and not 900, for appellants would, no doubt, have taken advantage of the terms of the contract and waived their privilege of cutting out 10 per cent. In speaking of cattle sold, did they mean 900 head, or did they mean all, or did they mean 1,000 head. If the matter is so uncertain that a theory not advanced by appellants can be deduced which makes the parties mean 900 and not all, then is it not sufficiently uncertain that appellee's theory may be correct, and that the parties regarded the contract as one for the sale of 1,000 head with a 10 per cent. cut. The contract is framed in the language used in the cattle business, and I fail to see how it can be said that the contracting parties clearly contemplated as cattle sold those the buyers were bound to take, and not those they were at liberty to take under the contract. There is indeed much in the contract which indicates that they contemplated 1,000 head as the number sold, with a 10 per cent. cut allowed, but I believe the theory that they contemplated as cattle sold 900 head can find no basis in what they said, but must rest upon construction based upon a certain conception as to what is sufficient in law to constitute a contract for the sale of property. When it becomes necessary to theorize about the intention of the parties as disclosed by the language of a contract, can it be said to be unambiguous? Of course if it were admitted that the parties meant by "steers sold" only 900 head, it would follow that there could not be any which were cut out of those sold, and the words in the second contract would necessarily mean cut away from those sold. If it were admitted that such a construction can be given thereto, it certainly is not clear that the parties used it in any such sense.
Believing as I do that the appellee's construction does less violence to the language of the contracts than appellants', but that the court did not err in holding the same ambiguous, I think the judgment should be affirmed.