#### JAMES R. RHYNE, by his next friend J. Laban Rhyne, v. WILLIAM H. RHYNE.

(Filed 8 December, 1909.)

1. Contracts, Interpretation of — Intent — Reasonable Support — Blanks Supplied — Certainty.

A bond in a certain sum given in consideration of certain lands, conditioned upon tbe obligor’s supporting in a certain manner an imbecile son of tbe obligee for and during bis natural life, if tbe son think it proper to live with bim, and that if be “shall be minded to live with another person” tbe obligor shall pay tbe son yearly for and on account of bis maintenance “at such other place the sum of.dollars per year,” evidences the intent that tbe father desired-to provide for the support and maintenance of the son; and tbe blank left therein does not avoid the undertaking if the son live with another person, but manifests a purpose not to limit tbe amount thought necessary for tbe son’s support except as it is imposed by the condition of life in which he lived.

2. Contracts, Interpretation of — Reasonable Support — Measure of Damages — Value of Services — Instructions—Harmless Error.

In a suit upon a bond and undertaking given to another for the support of an imbecile son, if he think it proper to live with the obligor, and if not, by construction, a reasonable allowance to the son in keeping with his condition in life, it was shown that the son was an average field hand and worth about $65 a year. The son lived with another person than the obligor. Held, (1) it was error in the trial judge to instruct the jury that recovery could be had of the amount necessary to support the son in his condition of life for the period he had not lived with the obligor, as it allowed no deduction for the value of the son’s services during that time; (2) it appeared from the verdict that the jury had made this deduction, and the error was harmless.

Walkek, J., dissenting.

Appeal from Gouncül, J., May Term, 1909, of G-astON.

Civil action, tried at May Term, 1909, of the Superior Court of Gaston County, Ms Honor, Judge Councill, presiding.

Tbe action is brought on a bond executed by defendant, of which the following is a copy:

“State of Noim-r Oakolina — Gaston County.

"Know all men by these presents: That I, William H. Rhyne, am held and firmly bound unto James R. Rhyne in the sum of' one thousand dollars, good and lawful nioney of the United States, to the true and faithful payment whereof to him, the said James R. Rhyne, his heirs, executors and administrators, jointly and severally, firmly by these presents, signed with my hand and sealed with my seal, this the ilth day of May, 1886.

“The condition of the above obligation is such that, whereas the above bounden William H. Rhyne hath this day contracted. *401and agreed to maintain tbe said James R. Rbyne during bis natural life. And tbe said William H. Rbyne, in consideration of six hundred dollars in band paid by Jacob A. Rbyne, tbe receipt of wbicb is hereby acknowledged, bath covenanted and agreed, and by these presents doth covenant and agree in manner and form following: That is to say, that be, tbe said William H. Rbyne, bis heirs, executors and administrators, shall and will, at bis and their own proper costs and charges, maintain and keep tbe said James R. Rbyne for and during bis natural life, with good and sufficient meat, drink, apparel, washing and lodging, at bis, tbe said William H. Rhyne’s, dwelling bouse, if tbe said J ames R. Rbyne shall think proper to live with him, and if the said James R. Rhyne shall be minded to live with any other person, that then in such case he, the said William H. Rbyne, bis executors and administrators, shall and will well and truly pay the said James R. Rbyne, yearly, for and on account of bis maintenance at such other place, the sum of_dollars per year, and after that rate for any greater or lesser time than a year that tbe said James R. Rhyne shall be mindful as aforesaid to dwell with any other person than tlie said William H. Rhyne.

“In witness whereof, -the said William H. Rbyne has hereunto set bis band and affixed bis seal, on the date above written.

(Signed) William: H. Rhyitk [Seal.]

“Witness: (Signed) JohN LabaN RhyNE.”

James R. Rbyne did not reside with the defendant, and brings this action to recover such sum as was reasonably necessary for bis support while residing with J. Laban Rhyne.

These issues were submitted to tbe jury: ^

1. “Is the plaintiff’s cause of action, or any part of it, barred by the statute of limitations?” Answer: “No.”

3. “What sum is due to tbe plaintiff on account of tbe breach of tbe contract?” Answer: “$775.”

Tbe court rendered judgment for tbe plaintiff, and the defendant appealed.

A. G. Mangum for plaintiff.

BurweTl & Gansler and George W. Wilson for defendant.

Beown, J.,

after stating tbe case: Tbe parties to this action were sons of Jacob A. Rbyne, who, being quite old, on 6 May, 1886, conveyed certain real property to his two sons, William H. Rbyne and John Laban Rbyne, for tbe purpose of providing a support for himself and bis imbecile son, James R. Rbyne. Tbe *402tract conveyed to Laban was for tbe grantor’s benefit. Tbe tract conveyed to tbis defendant was then worth about six hundred dollars, and tbe consideration for the conveyance was tbe contract hereinbefore set out.

Tbe plaintiff and bis father resided with Laban, at tbe home place, and, after the father’s death, tbe plaintiff continued to reside there, where he had lived all his life.

This action is brought to recover under the last clause of the contract, which reads as follows: “And. if the said J ames R. Rhyne shall be minded to live with any other person, that then and in such case he, the said William H. Rhyne, his executors and administrators, shall and will well and truly pay the said James R.-Rhyne, yearly, for and on account of Ms maintenance at such other place, the sum of_dollars per year, and after that rate for any greater or lesser time than a year that the said James R. Rhyne shall be minded as aforesaid to dwell with any other person .than the said William H. Rhyne.”

The right to- recover depends upon whether, under a proper construction of the entire'instrument, the defendant can be required to contribute to plaintiff’s support while living with his brother, Laban; for it is admitted that if, under the conditions of the bond, with the blank space unfilled, the defendant can only be required to support plaintiff while he lived with defendant, then plaintiff cannot recover. The solution of the question depends-upon the construction to be placed upon the bond itself, considered in the light of the circumstances surrounding the parties at the time it was executed.

His Honor cb^trged the jury that “The execution of the contract having been admitted by the defendant, and that under its terms and provisions the plaintiff had a right to reside at any place he might desire, that the obligation rested upon the defendant to pay him such sum of money as would be reasonable and sufficient to support him in a manner equal to the one referred to in the contract, taking into consideration his station in society and his relation in life, and taking into consideration what was in contemplation by the parties at the time of the execution of the contract.” To this charge defendant excepted.

We are of opinion that this interpretation of the instrument is correct. We do*not think that the failure to fill up the blank space avoids the contract.and renders it impossible for plaintiff to recover. On the contrary, we are of opinion that the failure to fill up the blank manifests a purpose not to limit the amount thought to be necessary for plaintiff’s support when not living *403with defendant, except by such limitation as is imposed by tbe condition of life in wbicb plaintiff bad lived.

To arrive at tbe-intent of tbe parties it is proper to look at tbe entire instrument, tbe condition of tbe parties and tbe purpose for wbicb it was entered into.

Tbe father bad made provision for himself, and at tbe same" time be undertook to provide for .bis weak-minded son. Tbe sole purpose wbicb induced tbe father to convey tbe land to tbe defendant was to secure a support for plaintiff. It is hardly conceivable that be intended to place plaintiff in defendant’s absolute power by forcing him to reside with him and leave tbe old borne, where plaintiff bad lived all bis life. Why put in tbe clause that plaintiff might live elsewhere and then purposely cut him off from a support in ease be exercised tbe very privilege conferred- on him? Such construction is antagonistic to tbe words of tbe instrument and at variance with tbe manifest purposes of tbe parties to it.

We recognize tbe general rule that if a blank be left in an instrument tbe omission may be supplied only if tbe instrument contains tbe means of supplying it with certainty. But this instrument can be easily and fairly construed to be a completed contract without filling in tbe blank. Tbe obligation is to pay one thousand dollars, and tbe contract, tbe performance of which tbe bond is intended to secure, is tbe maintenance of plaintiff; and tbe failure to fill in tbe blank appears to us to indicate, a purpose to measure tbe cost, not with exactness, but by tbe reasonable needs of plaintiff from year to year, under tbe changing conditions of bis life.

None of tbe authorities cited by tbe learned counsel for defendant appear to give us much light, for the cases cited relate to definite promises to pay, and are coupled with nothing else.

To illustrate: In the Illinois case (Church v. Noble, 24 Ill., 291) tbe contract contained several independent provisions, which were enforcible, but also contained, a clause as. follows: “And shall, in addition, pay tbe said party of the second part (the plaintiff) tbe sum of_”

Of course, this provision was held not to be enforcible, for where there.is so great uncertainty that it cannot be known what is contracted for, tbe contract is necessarily void on that account.

Tbe other assignments of error relied on in defendant’s brief are predicated upon alleged error in bis Honor’s charge, wherein be instructed tbe jury that tbe plaintiff would be entitled to recover from tbe defendant sucb an amount as tbe jury should determine a reasonable charge for bis annual support and'main*404tenance, without deducting anything therefrom on account of the value of the labor which he rendered during said time. We think this charge erroneous, and would entitle defendant to a new trial but for the manifest fact that the jury, disregarding the charge or failing to understand it, cured the error of the judge by deducting from the cost of plaintiff’s support the value of his labor.

The defendant offered no evidence, and that relating to the cost of supporting plaintiff, as well as to the value of his services, comes from plaintiff’s witnesses.

The smallest estimate placed upon the cost of supporting' plaintiff is one hundred dollars per year. The testimony as to the value of his labor is that a good field hand is worth sixty-five dollars per year; that plaintiff was forty-two years old when this contract was executed and is now sixty-five; that a part of the time he was an average field hand, although very feeble-minded and fit for nothing else; that for ten years past he has been physically feeble and not an average field hand and able to work but little. The jury gave $775 for a period of about twenty-two years, up to 25 March, 1908, when this action was commenced, or about thirty-five dollars per annum, which is the difference between the lowest estimated cost of supporting plaintiff and the highest estimate placed upon the value of his labor. It is also about six per cent, interest on the value of the land conveyed to defendant at the date he received it.

If the plaintiff is entitled to recover at all, then, in any view of the evidence, he is entitled to recover as much as the sum awarded by the "jury.

Upon a review of the record, we find no error which, in our opinion, necessitates a new trial.

Judgment affirmed.

Walkee, J., dissenting.