Jenny Lind Co. v. Bower & Co.

Citations

• 11 Cal. 194

Syllabus

<p>Where an ambiguity in an instrument of writing consists in the use of a word which has a settled meaning, but at the same time consistently admits of two interpretations, according to the subject matter in the contemplation of the contracting parties, it is not such a patent ambiguity as falls within the rule forbidding its explanation by parol testimony. It belongs to that intermediate class of cases which partake of the nature both of patent and latent ambiguities.</p> <p>In an action concerning a disputed boundary between two mining claims, depending on an agreement between the parties, in which the word “ north ” was used, and parol evidence was admitted to prove that it was the custom of the locality to run boundary lines by the magnetic meridian, and that that was the understanding of the parties : Held, that such evidence was admissible, not to contradict or vary the term, but to ascertain the sense in which it was used.</p> <p>On a motion for a new trial on the ground of newly discovered evidence, the affidavit of one of the defendants as to what an absent witness will testify, is insufficient. It should be accompanied by the affidavit of the witness himself; if that cannot be obtained in time, additional time should be applied for.</p>