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Supreme Court of New Hampshire

114 N.H. 773, 329 A.2d 144 (1974)

KENISON, Chief Justice:

Plaintiff initiated suit in the District Court of Portsmouth to evict the defendant pursuant to RSA 540. Alleging that his remedy at law was inadequate, plaintiff then commenced this action in superior court for a temporary mandatory injunction directing defendant to vacate the premises pending the outcome of the suit at law. Plaintiff alternatively sought a determination that defendant had violated an agreement with plaintiff and that he should be ordered to vacate pursuant to the agreement to be compelled to comply with its terms.

Trial by a Master (Leonard C. Hardwick, Esq.) resulted in a denial of plaintiff's petition for a temporary injunction and in a finding that defendant had not violated the agreement. The master made certain other findings and rulings in adjusting the relationship between the parties. Defendant objected to that portion of the master's report defining the respective areas of operations of the parties and its exceptions to the denial of its motions requesting the trial court to amend the findings and rulings of the master were reserved and transferred by Morris, J. This appeal raises the question of whether the master's determination that defendant was not entitled to use the basement area of plaintiff's building was sufficiently supported by the record and by the relevant law.

Plaintiff owns a Holiday Inn motel and restaurant located in Portsmouth, N.H. By a contract entered into on June 19, 1969, defendant agreed to operate 'the food and beverae operation located on the first floor of the Holiday Inn . . ., together with all convention and meeting rooms located on the demised premises, except those located in the basement.' Subsequently, defendant experienced difficulty in obtaining a liquor license due to the State liquor commission's objections that the agreement appeared to be a lease. Accordingly, the initial agreement was modified in December 1970, to eliminate the word 'demise' and was denominated a 'management contract'. However, this new agreement which was antedated to June 19, 1969, also altered the phraseology of the original agreement so that by its terms defendant agreed to operate 'the food and beverage operation at the Holiday Inn . . ., together with all convention and meeting rooms located therein on the premises.' No exclusion of the basement area was specified. In return for the use of the facilities defendant agreed to pay plaintiff not less than $45,000 for the first year, at least $55,000 for the second year and not less than $65,000 for the third year.

Whether or not the basement was included within the area in which defendant was entitled to operate his food and beverage business under the management contract is the crucial point of contention between the parties. Since the amount to be paid by defendant to plaintiff each year was based on the area available for defendant's operations, the determination of whether the basement area was included lies at the heart of agreement. The master found that the basement area was not included in the area of use to which defendant was entitled under the terms of the agreement. In so finding, he held that with respect to the basement the parties entered into an entirely separate agreement according to the terms of which plaintiff would be paid a certain percentage of income from defendant's use of the basement area. If defendant did not utilize the area and, therefore, derived no income from it, he would not be obliged to make any payment to plaintiff.

Defendant maintains that on the basis of the revised 'management contract' the basement area was included within its area of operation and that since plaintiff deprived defendant of a portion of the area, defendant deserves a proportionate reduction in rent paid. Plaintiff argues that the testimony of the parties' accountants and the behavior of defendant establishes the existence of a separate agreement with regard to the basement.

In his argument to overturn the determination of the master, defendant contends that the plain meaning of the language in the management contract controls, and that, therefore, the master's reliance on extrinsic evidence to interpret the wording of the agreement was impermissible. According to defendant the language of the management contract referring to 'all convention and meeting rooms' is unequivocal in its inclusion of the basement area within defendant's area of operation. As defendant correctly points out, the so-called 'plain meaning' rule governing the interpretation of contracts compels a court to exclude that which would contradict the plain meaning of terms once that meaning has been ascertained. But, if the contract is ambiguous on its face, extrinsic evidence is admissible. 3 A. Corbin, Contracts s 542 (1960); Patterson, The Interpretation and Construction of Contracts, 64 Colum.L.Rev. 833, 838 (1964).

The plain meaning rule as a guide for interpreting contracts, however, has been questioned on several grounds. The rule itself has been characterized as a last resort for *776 a court that has failed to discover any other aid in interpreting the contract. In light of the inherently ambiguous nature of words themselves, the ascertainment of a plain meaning may be at best an elusive goal. 3 A. Corbin, Contracts s 535 (1960); 9 J. Wigmore, Evidence s 2470, at 227 (1940): 4 S. Williston, Contracts s 609A (1961): see Chafee, The Disorderly Conduct of Words, 41 Colum.L.Rev. 381 (1941); Towne v. Eisner, 245 U.S. 418, 425, 35 S.Ct. 158, 62 L.Ed. 372 (1971). Even those courts that continue to recognize the rule allow an exception to admit information regarding relevant circumstances. **147 The recognition of this exception no doubt stems from the realization that circumstances surrounding a contract play an essential part in facilitating its proper interpretation. Patterson, supra at 843; 3 A. Corbin, Contracts s 536 (1960); Restatement of Contracts (Second) s 228(1), Comment b (Tent.Draft No. 5, 1970); Restatement of Contracts s 235(d), (e) (1936).

In this State how the parties acted with regard to the contract is considered as part of the relevant circumstances and, thus, the master correctly referred to the conduct of the parties in interpreting the disputed language in the management contract. Guy v. Hanley, 111 N.H. 73, 75, 276 A.2d 1, 3 (1971); Grayson v. LaBranche, 107 N.H. 504, 505-506, 225 A.2d 922, 923 (1967); Bogosian v. Fine, 99 N.H. 340, 342, 111 A.2d 190, 192 (1955). The actions of the parties subsequent to the management contract substantiated the existence of a separate agreement covering the basement area. Defendant submitted to plaintiff detailed accountings for the period from June 19, 1969, through June 30, 1970, which specified what income defendant received from the use of the basement area. According to a percentage formula which defendant itself devised, it calculated that plaintiff was entitled to about $3,000 from the income. Based on these calculations the master could find that the basement area was the subject of a separate agreement between the parties.

Defendant alternatively argues that if extrinsic evidence is permitted to interpret the language of the management contract, the weight of the evidence is contrary to the master's finding of a separate agreement. To support this contention defendant points out that the basement facilities did not exist at the time of the original contract on June 19, 1969. By the time the management contract was made in December, however, the basement facilities had been installed and, therefore, that contract was entered into with the basement area in mind. Defendant also refers to the fact that it made substantial expenditures to furnish the basement area and that such outlays would be inconsistent with the idea that the basement was not included within its area of operation. Defendant further points to testimony of its accountant to the effect that plaintiff billed defendant for gas and electricity for the basement as well as the first floor.

While these facts are evidence that the basement may have been included within defendant's area of operation according to the terms of the management contract, they are not decisive. The fact that defendant made separate payments to plaintiff for use of the basement is strong evidence that a separate agreement was made. Where there is a conflict in the evidence such as here the trier of fact's determination controls unless it is clearly erroneous. New England Tel. & Tel. Co. v. Mitchell, 114 N.H. --, --, 322 A.2d 613, 615 (1974); Copeland Process Corp. v. Nalews, Inc., 113 N.H. 612, 312 A.2d 576 (1973); Sutton Mut. Cas. Co. v. O'Brien, 108 N.H. 325, 328, 234 A.2d 528, 530 (1967); Hardware Mut. Cas. Co. v. Hopkins, 106 N.H. 412, 417, 213 A.2d 692, 695-696 (1965).

Defendant's exceptions overruled.

All concurred.



Supreme Court of California

69 Cal.2d 33, 442 P.2d 641, 69 Cal.Rptr. 561, 40 A.L.R.3d 1373 (1968)

TRAYNOR, Chief Justice.

Defendant appeals from a judgment for plaintiff in an action for damages for injury to property under an indemnity clause of a contract.

In 1960 defendant entered into a contract with plaintiff to furnish the labor and equipment necessary to remove and replace the upper metal cover of plaintiff's steam turbine. Defendant agreed to perform the work 'at (its) own risk and expense' and to 'indemnify' plaintiff 'against all loss, damage, expense and liability resulting from * * * injury to property, arising out of or in any way connected with the performance of this contract.' Defendant also agreed to procure not less than $50,000 insurance to cover liability for injury to property. Plaintiff was to be an additional named insured, but the policy was to contain a cross-liability clause extending the coverage to plaintiff's property.

During the work the cover fell and injured the exposed rotor of the turbine. Plaintiff brought this action to recover $25,144.51, the amount it subsequently spent on repairs. During the trial it dismissed a count based on negligence and thereafter secured judgment on the theory that the indemnity provision covered injury to all property regardless of ownership.

Defendant offered to prove by admissions of plaintiff's agents, by defendant's conduct under similar contracts entered into with plaintiff, and by other proof that in the indemnity clause the parties meant to cover injury to property of third parties only and not to plaintiff's property. Although the trial court observed that the language used was 'the classic language for a third party indemnity provision' and that 'one could very easily conclude that * * * its whole intendment is to indemnify third parties,' it nevertheless held that the 'plain language' of the agreement also required defendant to indemnify plaintiff for injuries to plaintiff's property. Having determined that the contract had a plain meaning, the court refused to admit any extrinsic evidence that would contradict its interpretation.

When a court interprets a contract on this basis, it determines *37 the meaning of the instrument in accordance with the '* * * extrinsic evidence of the judge's own linguistic education and experience.' (3 Corbin on Contracts (1960 ed.) (1964 Supp. s 579, p. 225, fn. 56).) The exclusion of testimony that might contradict the linguistic background of the judge reflects a judicial belief in the possibility of perfect verbal expression. (9 Wigmore on Evidence (3d ed. 1940) s 2461, p. 187.) This belief is a remnant of a primitive faith in the inherent potency and inherent **644 ***564 meaning of words.

The test of admissibility of extrinsic evidence to explain the meaning of a written instrument is not whether it appears to the court to be plain and unambiguous on its face, but whether the offered evidence is relevant to prove a meaning to which the language of the instrument is reasonably susceptible. (Continental Baking Co. v. Katz (1968) 68 A.C. 527, 536--537, 67 Cal.Rptr. 761, 439 P.2d 889; Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865, 44 Cal.Rptr. 767, 402 P.2d 839; Hulse v. Juillard Fancy Foods Co. (1964) 61 Cal.2d 571, 573, 39 Cal.Rptr. 529, 394 P.2d 65; Nofziger v. Holman (1964) 61 Cal.2d 526, 528, 39 Cal.Rptr. 384, 393 P.2d 696; Coast Bank v. Minderhout (1964) 61 Cal.2d 311, 315, 38 Cal.Rptr. 505, 392 P.2d 265; Imbach v. Schultz (1962) 58 Cal.2d 858, 860, 27 Cal.Rptr. 160, 377 P.2d 272; Reid v. Overland Machined Products (1961) 55 Cal.2d 203, 210, 10 Cal.Rptr. 819, 359 P.2d 251.)

A rule that would limit the determination of the meaning of a written instrument to its four-corners merely because it seems to the court to be clear and unambiguous, would either deny the relevance of the intention of the parties or presuppose a degree of verbal precision and stability our language has not attained.

Some courts have expressed the opinion that contractual obligations are created by the mere use of certain words, whether or not there was any intention to incur such obligations. Under this view, contractual obligations flow, not from the intention of the parties but from the fact that they used certain magic words. Evidence of the parties' intention therefore becomes irrelevant.

In this state, however, the intention of the parties as expressed in the contract is the source of contractual rights and duties. A court must ascertain and give effect to this intention by determining what the parties meant by the words they used. Accordingly, the exclusion of relevant, extrinsic evidence to explain the meaning of a written instrument could be justified only if it were feasible to determine the meaning the parties gave to the words from the instrument alone.

If words had absolute and constant referents, it might be possible to discover contractual intention in the words themselves and in the manner in which they were arranged. Words, however, do not have absolute and constant referents. 'A word is a symbol of thought but has no arbitrary and fixed meaning like a symbol of algebra or chemistry, * * *.' (Pearson v. State Social Welfare Board (1960) 54 Cal.2d 184, 195, 5 Cal.Rptr. 553, 559, 353 P.2d 33, 39.) The meaning of particular words or groups of words varies with the '* * * verbal context and surrounding circumstances and purposes in view of the linguistic education and experience of their users and their hearers or readers (not excluding judges). * * * A word has no meaning apart from these factors; much less does it have an objective **645 ***565 meaning, one true meaning.' (Corbin, The Interpretation of Words and the Parol Evidence Rule (1965) 50 Cornell L.Q. 161, 187.) Accordingly, the meaning of a writing '* * * can only be found by interpretation *39 in the light of all the circumstances that reveal the sense in which the writer used the words. The exclusion of parol evidence regarding such circumstances merely because the words do not appear ambiguous to the reader can easily lead to the attribution to a written instrument of a meaning that was never intended. (Citations omitted.)' (Universal Sales Corp. v. Cal. Press Mfg. Co., supra, 20 Cal.2d 751, 776, 128 P.2d 665, 679 (concurring opinion); see also, e.g., Garden State Plaza Corp. v. S. S. Kresge Co. (1963) 78 N.J.Super. 485, 189 A.2d 448, 454; Hurst v. W. J. Lake & Co. (1932) 141 Or. 306, 310, 16 P.2d 627, 629, 89 A.L.R. 1222; 3 Corbin on Contracts (1960 ed.) s 579, pp. 412--431; Ogden and Richards, The Meaning of Meaning, op. cit. 15; Ullmann, The Principles of Semantics, supra, 61; McBaine, The Rule Against Disturbing Plain Meaning of Writings (1943) 31 Cal.L.Rev. 145.)

Although extrinsic evidence is not admissible to add to, detract from, or vary the terms of a written contract, these terms must first be determined before it can be decided whether or not extrinsic evidence is being offered for a prohibited purpose. The fact that the terms of an instrument appear clear to a judge does not preclude the possibility that the parties chose the language of the instrument to express different terms. That possibility is not limited to contracts whose terms have acquired a particular meaning by trade usage, but exists whenever the parties' understanding of the words used may have differed from the judge's understanding.

Accordingly, rational interpretation requires at least a preliminary consideration of all credible evidence offered to prove the intention of the parties. (Civ.Code, s 1647; Code Civ.Proc. s 1860; see also 9 Wigmore on Evidence, op. cit. supra, s 2470, fn. 11, p. 227.) Such evidence includes testimony as to the 'circumstances surrounding the making of the agreement * * * including the object, nature and subject matter of the writing * * *' so that the court can 'place itself in the same situation in which the parties found themselves at the time of contracting.' (Universal Sales Corp. v. Cal. Press Mfg. Co., supra, 20 Cal.2d 751, 761, 128 P.2d 665, 671; Lemm v. Stillwater Land & Cattle Co., supra, 217 Cal. 474, 480--481, 19 P.2d 785.) If the court decides, after considering this evidence, that the language of a contract, in the light of all the circumstances, is 'fairly susceptible of either one of the two interpretations contended for * * *.' (Balfour v. Fresno C. & I. Co. (1895) 109 Cal. 221, 225, 44 P. 876, 877; see also, Hulse v. Juillard Fancy Foods Co., supra, 61 Cal.2d 571, 573, 39 Cal.Rptr. 529, 394 P.2d 65; Nofziger v. Holman, supra, 61 Cal.2d 526, 528, 39 Cal.Rptr. 384, 393 P.2d 696; Reid v. Overland Machined Products, supra, 55 Cal.2d 203, 210, 10 Cal.Rptr. 819, 359 P.2d 251; Barham v. Barham (1949) 33 Cal.2d 416, 422-- 423, 202 P.2d 289; Kenney v. Los Feliz Investments Co. (1932) 121 Cal.App. 378, 366--387, 9 P.2d 225), extrinsic evidence relevant to prove either of such meanings is admissible.

In the present case the court erroneously refused to consider extrinsic evidence offered to show that the indemnity clause in the contract was not intended to cover injuries to plaintiff's property. Although that evidence was not necessary to show that the indemnity clause was reasonably susceptible of the meaning contended for by defendant, it was nevertheless relevant and admissible on that issue. Moreover, since that clause was reasonably susceptible of that meaning, *41 the offered evidence was also admissible to prove that the clause had that meaning and did not cover injuries to plaintiff's property. Accordingly, the judgment must be reversed.

Plaintiff's assertion that the use of the word 'all' to modify 'loss, damage, expense and liability' dictates an all inclusive interpretation is not persuasive. If the word 'indemnify' encompasses only third-party claims, the word 'all' simply refers to all such claims. The use of the words 'loss,' 'damage,' and 'expense' in addition to the word 'liability' is likewise inconclusive. These words do not imply an agreement to reimburse for injury to an indemnitee's property since they are commonly inserted in third-party indemnity clauses, to enable an indemnitee who settles a claim to recover from his indemnitor without proving his liability. (Carpenter Paper Co. v. Kellogg (1952) 114 Cal.App.2d 640, 651, 251 P.2d 40. Civ.Code, s 2778, provides: '1. Upon an indemnity against liability * * * the person indemnified is entitled to recover upon becoming liable; 2. Upon an indemnity against claims, or demands, or damages, or costs * * * the person indemnified is not entitled to recover without payment thereof; * * *.')

The provision that defendant perform the work 'at his own risk and expense' and the provisions relating to insurance are equally inconclusive. By agreeing to work at its own risk defendant may have released plaintiff from liability for any injuries to defendant's property arising out of the contract's performance, but this provision did not necessarily make defendant an insurer against injuries to plaintiff's property. Defendant's agreement to procure liability insurance to cover damages to plaintiff's property does not indicate whether the insurance was to cover all injuries

or only injuries caused by defendant's negligence.

Two questions remain that may arise on retrial. On the theory that the indemnity clause covered plaintiff's property, the trial court instructed the jury that plaintiff was entitled to recover unless all of '* * * the following conditions (were found) to exist:

'1. That Pacific Gas and Electric Company continued to *42 maintain independent operation on the premises whereon the installation of the cover was in progress;

'2. That the damage to the turbine was unrelated to the Defendant G. W. Thomas Drayage & Rigging Company, Inc.'s performance;

'3. That the plaintiff was guilty of active, affirmative negligence; and

'4. That such active negligence related to a matter over which the plaintiff exercised exclusive control.'

The instruction was based on certain guidelines discussed in Goldman v. Ecco-Phoenix Elec. Corp. (1964) 62 Cal.2d 40, 45--46, 41 Cal.Rptr. 73, 396 P.2d 377; Harvey Mach. Co. v. Hatzel & Buehler, Inc. (1960) 54 Cal.2d 445, 448, 6 Cal.Rptr. 284, 353 P.2d 924; and Safeway Stores, Inc. v. Massachusetts Bonding & Ins. Co. (1962) 202 Cal.App.2d 99, 112--113, 20 Cal.Rptr. 820. Those cases do not hold, however, that all four conditions specified in the instruction must exist for the indemnitor to be relieved of liability. It is sufficient if the indemnitee's own active negligence is a cause of the harm. As stated in Markley v. Beagle (1967) 66 Cal.2d 951, 962, 59 Cal.Rptr. 809, 816, 429 P.2d 129, 136, 'An indemnity clause phrased in general terms will not be interpreted * * * to provide indemnity for consequences resulting from the indemnitee's own actively negligent acts.'

To prove the amount of damages sustained, plaintiff presented invoices received from Ingersoll-Rand, the manufacturer and repairer of the turbine, the drafts by which plaintiff had remitted payment, and testimony that payment had been made. Defendant objected to the introduction of the invoices on the ground that they were hearsay. Subsequently, plaintiff called a mechanical engineer who qualified as an expert witness on the repair of turbines. On the basis of photographs of the damage after the accident, he testified that to repair the turbine it was reasonable and necessary to dismantle it completely, magnaflux all parts, replace all blades in wheels that had been damaged, reassemble the rotor, balance it, 'indicate' it and centrifugate it. Similar repairs were listed in the invoices, and over objection the witness was allowed to testify that the amounts charged therefor were reasonable.

Since invoices, bills, and receipts for repairs are hearsay, they are inadmissible independently to prove that liability for the repairs was incurred, that payment was made, or *43 that the charges were reasonable. (Plonley v. Reser (1960) 178 Cal.App.2d Supp. 935, 937--939, 3 Cal.Rptr. 551, 80 A.L.R.2d 911; Menefee v. Raisch Improvement Co. (1926) 78 Cal.App. 785, 789, 248 P. 1031.) If, however, a party testifies that he incurred or discharged a liability for repairs, any of these documents may be admitted for the limited purpose of corroborating his testimony (Bushnell v. Bushnell (1925) 103 Conn. 583, 131 A. 432, 436, 44 A.L.R. 785; Cain v. Mead (1896) 66 Minn. 195, 68 N.W. 840, 841), and if the charges were paid, the testimony and documents are evidence that the charges were reasonable. (Dewhirst v. Leopold (1924) 194 Cal. 424, 433, 229 P. 30; Smith v. Hill (1965) 237 Cal.App.2d 374, 388, 47 Cal.Rptr. 49; Meier v. Paul X. Smith Corp. (1962) 205 Cal.App.2d 207, 222, 22 Cal.Rptr. 758; Malinson v. Black (1948) 83 Cal.App.2d 375, 379, 188 P.2d 788; Laubscher v. Blake (1935) 7 Cal.App.2d 376, 383, 46 P.2d 836. See also Gimbel v. Laramie (1960) 181 Cal.App.2d 77, 81, 5 Cal.Rptr. 88.) Since there was testimony in the present case that the invoices had been paid, the trial court did not err in admitting them.

[18][19] The individual items on the invoices, however, were read, not to corroborate payment or the reasonableness of the charges, but to prove that these specific repairs had actually been made. No qualified witness was called to testify that the invoices accurately recorded the work done by Ingersoll-Rand, and there was no other evidence as to what repairs were made. This use of the invoices was error. (California Steel Buildings, Inc. v. Transport Indemnity Co. (1966) 242 Cal.App.2d 749, 759, 51 Cal.Rptr. 797. Accord, Bushnell v. Bushnell, supra, 103 Conn. 583, 131 A. 432, 436; Ferraro v. Public Service Ry. Co. (1928) 141 A. 590, 6 N.J.Misc. 463; Nock v. Lloyd (1911) 32 R.I. 313, 79 A. 832, 833.) An invoice submitted by a third party is not admissible evidence on this issue unless it can be admitted under some recognized exception to the hearsay rule.

Since plaintiff's expert's testimony as to the reasonableness of the charges was based on hearsay evidence inadmissible to prove that the repairs had been made, defendant's *44 objections to it should have been sustained. '(A)n expert must base his opinion either on facts personally observed or on hypotheses that find support in the evidence.' (George v. Bekins Van & Storage Co. (1949) 33 Cal.2d 834, 844, 205 P.2d 1037, 1044. See also Kastner v. Los Angeles Metropolitan Transit Authority (1965) 63 Cal.2d 52, 58, 45 Cal.Rptr. 129, 403 P.2d 385; Commercial Union Assurance Co. v. Pacific Gas & Electric Co. (1934) 220 Cal. 515, 524, 31 P.2d 793; Behr v. County of Santa Cruz (1959) 172 Cal.App.2d 697, 709, 342 P.2d 987; 2 Jones on Evidence (5th ed. 1958) s 416, pp. 782--783.)

The judgment is reversed.


6 Answers

  • Anonymous
    2 decades ago
    Favorite Answer

    很長, 我的中打很慢,不能全文翻譯先翻一段

    ----原告在Portmouth地方法院要逐出被告的原案,(case RSA 540),原告對損失賠償的判決不服,就向高等法院要求在訴訟過程還沒有結果以前提出臨時命令,命令被告遷出現在居住所. 原告決定尋求令一決議-.因被告(defendent)違反了和原告(plaintiff)的同意協定所以要求法律強制defendent般出以執行與plaintiff的協議

    法官(Leonard C.Hardwick)判定被告沒有違反與原告的協議而且判決否定了原告所提出臨時禁令的要求,法官還做了其他判決調整雙方關係.

    2005-04-01 15:37:58 補充:

    繼續-----至於被告不服 法官(Hardwick), 判決的上訴狀已由Morris法官保留並讓渡. 那上訴狀包括一.法官判決書上對雙方所謂 "使用範圍" 的定義 及法官駁反被告的要求要法庭改變判決的動議. 這個上訴產生的疑問是法官對被告不能使用原告建築物地下室的說法是否有足夠法律計錄或有關的法律來支持. 原告在Portmouth, N.H. 擁有Holliday Inn 旅館及飯店. 在1969 年6月19日簽訂的合約上,被告同意在Holiday Inn一樓經營food and drink(食品和飲品) 包括已授讓(demised premise))建築物的所有會議室,但地下室除外.後來被告因這州酒管制單委認為和約顯然是租約,而不批准使他受到申請賣酒牌照的障礙. 據此,原先的合約在1970年12月做了更改,把合約上"demise" (讓授)這個字去掉改成 (management) 經營管理,然而這新的合約把日期倒填成1969年6月19日.並且把原來的措詞修改.所以意思變成: 被告同意在Holiday Inn 及所有在上面的會議室經營 food and drink 並未有特別關於地下室除外的用字.對於使用設備的條件,被告同意第一年付原告少於$45,000 ,第二年至少$55,000, 第三年不能少於 $65000 . 至於在經營管理和約上(management contract), 地下室是否屬於被告經營 "food and drink" 生意的範圍,是雙方爭議的關鍵點 既然被告每年付原告的費用決定於 "事業經營可使用的範圍" 所以決定地下室是否包括在內就在於和約中心內容.雖然在同意書上的用詞,被告是有權使用地下室, 但 法官判定地下室不包括在可使用範圍,他認為有關地下室的部分雙方已另立了合約,根據合約上的用詞,被告應付原告每年因使用地下室而產生的收入的固定百分比, 如果被告並未使用這個地區,因而並未從這裡得到收入,就沒有義務付原告任何費用.被告仍舊認為根據已經改過的"management contract" 地下室是包括在經營事業的範圍,既然原告剝奪了被告的部分區域,被告應享有部分租金的減免,原告的爭議-指出雙服方會計師的證詞以及被告關於地下室部分有分開的合約之說.  在他的要求法官反(turnover)原來法官原判的爭議中被告爭辯應該看管理合約上字意做決定,因法官依賴外在證據來解釋合約上的字義是不該允許在法庭上引用. (以下一大堆廢話多是提出的爭論並引用例子及出處來討論合約及為何不服法官對合約的詮釋 )( 從 THE ACTIONS OF APRTIES SUBSEQUENT---------_ 隨後雙方簽訂Management contract,證實了有 令一個是關於地下室的合約.被告逞給原告的從1969年6月19日至 1970年6月30日的詳細會計有特別指出那些收入是被告使用地下室賺的.根據被告自己以比例公式算 原告應從被告收入得$3,000 根據這法官可以看到地下室是雙方分別合約上的主題.被告又指出如果外在證據允許解釋合約 ,這證據和法官所謂的令一合約產生衝突, 為支持這個爭議,被告指出地下室的設備在1969年6月的和合約上並不存在. 在12月簽訂的合約上設備才裝潢好. 所以簽約時地下室已包括在內.被告並指出事實上他花費很多錢裝潢地下室,如說地下室不屬於經營範圍,不就不服合了? 被告又只指出它的會計師對事實的證詞:原告向被告收取一樓和地下室的瓦斯和電費 這些事實都是根據合約所謂地下室應包括在被告經營事業的範圍的實在證據而不是果斷的. -- -----

    2005-04-01 21:45:00 補充:

    你是法律系學生嗎?為什麼要讀這兩個case?Tranor 的case.自己看.接上 (part3)---- 事實上被告另外付給原告的錢作為地下室的使用費用就是兩方另有分開合約的強力證據.在這裡證據是否有衝突可由下面這幾個案例的辯駁和判決而定.Tel.&tel co. v. Mitchell-------等等.由上定.因此所有被告的異議都被批駁(沒批准)all Concurred.(法官判決書尾用的字.



  • 1 decade ago


  • 2 decades ago


  • Julie
    Lv 7
    2 decades ago


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  • 2 decades ago

    可以幫我翻通順一點嘛 我拿給補習班老師看 他也看不太懂 幫我翻通順一點 20點馬上給那位勇士

    2005-03-28 16:55:34 補充:

    不是我不努力翻 之前我有拿給補習班的英文老師看 他說他也看不太懂 更何況是我這個英文白痴(英檢連初級都沒過 所以................救救我吧)

    2005-03-30 15:28:41 補充:


    沒關係慢慢翻 你可以用回答的方式

    不要用補充意見 如果文義很通順 我再加十點送你

  • 阿國
    Lv 4
    2 decades ago


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