I cannot agree with the majority in the holding that the contract is in any sense ambiguous. If there is no ambiguity, then the trial court erred in admitting the evidence complained of.
"When the language implied is unequivocal there is no room for construction." 22 C.J. 1177; 4 Page on the Law of Contracts, §§ 2023, 2060.
"Where there are not technical words used, the language of the instrument must be interpreted in accordance with the usual and ordinary meaning of the words contained in it." 2 Elliott on Contracts, §§ 1506-1509; 4 Page on the Law of Contracts, § 2024; 22 C.J. 1202; 13 C.J. 531.
Considering the contract as a whole, in the light of the foregoing rules, I think its meaning is clear, and that it (1) in simple language obligates the subscribers to immediately procure, free of cost to the railway company, entirely through and across Motley county, a right of way not less than 100 nor more than 200 feet wide, and to procure deeds therefor, except as to the Swenson and Matador lands; and (2) in consideration of such services the railway company is obligated to construct, on or before September 1, 1913, a line of standard gauge steam railway from its terminus in Paducah to a station on section 29, in Motley county; and (3) the subscribers were obligated to reimburse the company when it was forced to condemn the land by reason of the subscribers' failure to agree with the landowner upon its value.
There being no ambiguity in the contract, according to my view, the trial court erred in admitting the evidence complained of, the effect of which is not to explain, but to contradict and vary, the writing. I think paragraph first binds the subscribers to secure the right of way clear across Motley county in width, as provided in the second paragraph, and that the effect of the admitted evidence is to show that their obligation was to secure such right of way only to some place not designated in section 29. The witnesses were permitted to testify as to the idea they had of the matter, but under the well-established rule of law it is not the actual secret intention of the parties, or either of them, which the court is to ascertain, but it is the intention which the law attaches to the words which they have used, unless, of course, there is an allegation of fraud or mistake, which we do not find in this case. Ill. Cent. Ry. v. Vaughn (Ky.) 111 S.W. 707; Comptograph Co. v. Burroughs Adding Machine Co., 179 Iowa 83, 159 N.W. 465: N.W. Oil Gas Co. v. Branine,175 P. 533, 3 A.L.R. 344; 6 R.C.L. 835, § 225; 4 Page on the Law of Contracts, § 2023; 22 C.J. 1178, 1179, §§ 1570, 1571; 13 C.J. 523, 525.
If the contract stipulated that the subscribers were to procure right of way "through" Motley county (omitting the word "across"), and bound the company to build only to section 29, still the Mercer County Case, cited by the majority, is not authority here. In that case the Supreme Court of the United States was influenced largely in the interpretation of the word "through," as used in the act under consideration, by the further fact that the negotiable bonds had passed into the hands of a bona fide holder, and further the word "across" was not used by the Legislature in the act construed. Admitting that the word "through" may be limited in its meaning and by the context, yet when it is supplemented by the word "across," and these words have no technical meaning, I think there is no room for construction. "Across" primarily means "from side to side;" "from one side to another;" "quite over." Webster's Dictionary; Century Dictionary; Ill. Central Ry. Co. v. Chicago, 141 Ill. 586,30 N.E. 1044, 17 L.R.A. 530; Crowley v. Chicago, etc., Ry., 122 Wis. 287,99 N.W. 1016.
The rules with reference to grammatical construction and punctuation are clearly stated in 13 C.J. 534 and 535, as follows:
"The grammatical construction of a contract will not be followed, if a different construction will better give effect to the intention of the parties, as shown by the whole instrument and accomplish the object for which the contract was executed."
"The punctuation of a document, although it may aid in determining the meaning, will not utterly control or change a meaning which is plain from a consideration of the whole document and the circumstances, nor can punctuation marks be allowed to give the contract an unconscionable and inequitable meaning. In order to give effect to the intent of the parties it has been held that the court may employ proper punctuation marks in reading the contract."
The rule that a contract should be construed as a whole is cardinal, and as supplementary to this rule is the further *Page 815 principle that a contract should be so construed, if possible, as to give effect to all its parts and avoid inconsistencies and contradictions. 6 R.C.L. 227; 13 C.J. 525-527. If the words "as herein provided" are made to qualify "line," instead of "right of way," then there arises a doubt whether subscribers are bound to procure right of way to section 29, or entirely through and across the county; but if these words are made to qualify right of way, and to refer to specifications of the right of way, as set out in paragraph 2, there is no repugnancy or conflict in the contract as a whole, and effect can be given to every word in it, used in its popular and ordinary meaning. Construed otherwise, the words "through" and "across" must be eliminated or accepted in a qualified and unusual sense. According to my interpretation the subscribers wanted the road built to section 29. The company was willing to do this if the subscribers would procure a right of way through and across the county. The fact that the road was built 3 1/2 miles beyond section 29 is sufficient to show that the company did not intend to end its line on that section. Its charter called for 40 miles of road. There is nothing in the contract requiring the company to furnish the subscribers a list of landowners over whose property the line was surveyed. A fair construction of it would require them to take notice of that fact.
For the reasons stated, I respectfully dissent.