Opinion
Decided June 26, 1936.
Where a written instrument contains a clause reciting the object or intention of the parties such clause is obviously designed to prevail over contradictory or ambiguous statements contained elsewhere in the document. By written agreement a water company covenanted to "furnish water free of charge" to the defendant "in the house in which" the defendant "and his wife now live the intent and meaning being that this does not include any other property that" the defendant "now owns or hereafter owns" for the life of the defendant or his wife as long as the company is in existence. The defendant and certain tenants being in occupation of the house at the date of the agreement the intention was that water should be furnished free of charge to the entire building for use by the defendant and any of his tenants then or subsequently occupying the building with him.
ACTION, involving a contract under seal executed by the plaintiff and Cushman H. Parsons, who is referred to in the opinion as the defendant. The reserved case does not state the form of action or the relationship of the defendants. It is assumed that Eliza H. Parsons, the second defendant, is the wife of Cushman H. Parsons. The material clauses of the contract are as follows:
"This agreement, made the eighth day of March, A. D, 1922, by and between Cushman H. Parsons . . . of the first part, and the Colebrook Water Company . . . of the second part, witnesseth:
"That the said Parsons, in consideration of the covenants on the part of the party of the second part, hereinafter contained, doth covenant and agree to and with the said Colebrook Water Company from the brook known as Parsons Brook, from a point where the water is taken by the Colebrook Water Company at the present time, water to fill a two inch pipe at that point, and the right to repair, relace [replace] and maintain the pipe line across the Parsons land to the Colebrook Water Company reservoir, also the well at the brook where the water is taken; and the said Colebrook Water Company, for and in consideration of the covenants on the part of the party of the first part, doth covenant and agree to and with the said Parsons, that they will furnish water free of charge to the said Parsons, in the house in which the said Parsons and his wife now live, the intent and meaning being that this does not include any other property that the said Parsons now owns or hereafter owns, for the life of the said Parsons or his wife as long as the Colebrook Water Company is in existence."
It is stated as a fact that "At the date of the agreement the premises therein mentioned were occupied by the defendants and their tenants." Transferred by James, J., on the stipulation that if by the agreement the plaintiff is obligated to furnish water, free of charge, to the tenants in the building, there shall be judgment for the defendants, but if "the plaintiff's only obligation is to furnish water for the domestic purposes of the defendants," then judgment is to be entered for the plaintiff for $150.
Crawford D. Hening and Leon D. Ripley, for the plaintiff, furnished no brief.
Coulombe Coulombe, for the defendants, furnished no brief.
Where a written instrument contains a clause reciting the object or intention of the parties, such clause is obviously designed to prevail over contradictory or ambiguous statements elsewhere in the document. Woods v. Company, 5 N.H. 467, 473. If the declaration of intention in the contract here involved, with its reference to "other property," is thus considered, the only reasonable inference to be drawn from the language of the contract as a whole is that the plaintiff, in return for the right to take water from Parsons brook and to maintain a pipe line across "the Parsons land," covenants to supply water to the house in which the defendant and his wife reside "free of charge to the said Parsons."
It should be noted that this is not a case where an unforeseen situation has arisen since the execution of the contract. Tenants were occupying a part of the premises at the time the contract was entered into, and it is significant that while the recital of intention expressly excludes "other property," no reference to the tenants is there made.
In accordance with the stipulation of the parties, the order is
Judgment for the defendants.