Opinion
(June Term, 1845.)
Where a paper-writing is deficient in punctuation, and its sense may be varied as the punctuation is one way or another, extrinsic evidence may be introduced to explain its meaning.
APPEAL from LINCOLN Spring Term, 1845; Bailey, J.
Boyden for plaintiff.
Alexander for defendant.
This is the same case which was at this Court at June Term, 1843, in which the judgment was reversed and a venire de novo awarded. Graham v. Hamilton, 25 N.C. 381. Upon the second trial, the plaintiff again offered Owen Clark as a witness to establish that the articles which the defendants had sold as the property of Clark were not his property, but belonged to the plaintiff, and were delivered by him to Clark to sell as the plaintiff's agent. The defendants objected to Clark's competency upon the ground that there was a contract in writing between the plaintiff and Clark respecting the castings in dispute, and, in support of the objection, produced the letter from the plaintiff to Hamilton, dated 16 November, 1839, which is set forth in the former report. The plaintiff then proved clearly that the written agreement mentioned in the letter related exclusively to certain other property of Clark, and did not embrace any part of the castings, which are the subject of this action; and, thereupon, the court admitted Clark to be sworn and examined, and by his testimony he made out the case for the plaintiff, as stated above; and the court instructed the jury that, if they believed him, the plaintiff was entitled to a verdict for the value of the articles sold by the defendant.
The defendants excepted to the opinion of the court as to Clark's competency, and appealed.
The decision of his Honor was perfectly correct; and, indeed, was in conformity with the opinion given by this Court upon the former appeal. We thought that the natural and grammatical sense of the last sentence in the plaintiff's letter imported that the "written agreement" extended both to Clark's property (as admitted to be by the plaintiff) that was sold and, also, to these castings, which the plaintiff claimed to be his own property; and, therefore, that, without some explanation, parol evidence could not be given of the contract between the plaintiff and Clark, touching the castings. But it is obvious that the sense of that part of the letter would be much varied by punctuation, in which it is deficient; for by a semicolon after the word "sold," it would be made to mean that the writing concerned certain other property of Clark; and, as to the castings, the latter branch of the sentence would be simply an affirmation that they were sent by the plaintiff. For that reason it was distinctly intimated by the Court, that the question was open to evidence of the true nature and extent of the writing, and that, if it really did not extend to the castings, then Clark's testimony would be competent. Such evidence was given on the second trial, probably by the production of the writing itself, or by some other sufficient means; and the court was satisfied that, in point of fact, there was no written agreement respecting the castings, and, consequently, it was competent to prove the parol contract.
PER CURIAM. No error.
(430)