majority"> BbowN, J.

Plaintiff introduced evidence tending to prove that he had constructed, equipped and had in operation, within the time required by the contract, a permanent standard - railroad from Farmville to Hookerton, N. 0., to a depot erected within the town of Hookerton and on south side of Contentnea Creek. These facts are not controverted.

But it is contended that the contract requires that the depot shall be erected in Hookerton! “and” adjacent to the present southern limits of the town. The learned judge below seems to have so construed the contract. We are unable to adopt such construction, as we feel unauthorized to strike out the word “or” in the contract and substitute in its place the word “and.”

The one purpose of a written contract is to make certain what the contract is. “Words must not be forced away from their proper signification to one entirely different, although it might be obvious that the words used, either through ignorance or inadvertence, express a very different meaning from that intended.” Parson’s Law of Cont., Yol. II, p. 7. The terms being explicit, the construction is for the court., Wilson v. Cotton Mills, 140 N. C., 52; Banks v. Lumber Co., 142 N. C., 49.

*115 In the phrase under consideration an important word is the disjunctive “or.” We have no more right to strike it out than we have to strike out the word Hookerton.

To substitute the conjunctive “and” for it in the contract is not warranted by either the uses of language or the context of the writing. There have been such changes in the words of a written instrument when clearly demanded by the context. Such a substitution would put upon the plaintiff in this case a double liability, and a condition he did not contract for. The substitution of a conjunctive for a disjunctive attaches such a qualification that of necessity changes the terms and meaning of the contract, and in effect materially alters it in an essential feature.

The real purpose of the contract was to secure the building of a standard railroad from Farmville to Hookerton, and that is the only consideration expressed upon its face. One of the termini was to be a depot erected in Hookerton, or adjacent to its southern limits. There is nothing doubtful or ambiguous in the words used. They plainly confer upon the plaintiff the optional right to erect the depot in Hookerton, or if not in Hookerton, then adjacent to its southern boundary.

It is admitted that the plaintiff has constructed the depot and located it within the corporate limits of Hookerton.

His Honor should have instructed the jury that upon the uncontradicted facts as presented in this reeord the plaintiff is entitled to recover.

New trial.

Hoke, J., concurs in result.

Citation profile

How this case has been treated — in progress