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it did not matter whether it was real value there is in the memberships in or personal property, or that it added excess of the value of the tangible to the owner's credit and facilities property of the Chamber. They are in Ohio.
exercisable only at Minneapolis. For In a few cases the courts have been the purpose
of the taxation of called on to determine whether a such excess value, the memberships, membership in a stock exchange is though owned without the state, or taxable at the location of the exchange within the state but without Minnedespite the nonresidence of the mem apolis, have a situs there." ber. Thus, in Rogers v. Hennepin So, it was held in Austen v. Brigham County (1915) 240 U. S. 184, 60 L. (1897) 67 N Y. Supp. 891, that a ed. 594, 36 Sup. Ct. Rep. 265, affirm membership or "seat” owned by a ing (1914) 124 Minn. 539, 145 N. W. nonresident in the New York Stock 112, there was involved the authority Exchange represented money investof the state of Minnesota to tax a ed in business in New York; that membership owned by a citizen of an the holder was engaged in business other state in the Minneapolis Stock in New York; and that consequently Exchange, and it was urged that such such membership was taxable under a membership was an intangible right the statute (Tax Law, 87, McKinney, held by the member at his domicil. Consol. Laws, bk. 59, p. 38) providing A contrary view was taken by the that nonresidents doing business in the court however. Hughes, Hughes, J, say
state of New York "shall be assessed ing: “But it sufficiently appears from
and taxed on all sums invested in any the allegations that the memberships manner in said business, the same as represented rights and privileges if they were residents of this state." which were exercised in transactions But different conclusion at the exchange in the city of Minne reached in People ex rel. Lemmon v. apolis, and we are of the opinion, Feitner (1900) 56 App. Div. 280, 67 applying a principle which has had N. Y. Supp. 893, a proceeding to recognition with respect to credits in review an assessement. The relator, favor of nonresidents arising from a resident of New Jersey, was business within the state, and in the member of the Stock Exchange in New case of shares of stock of domestic York city, and, as such member, was corporations, that it was competent
assessed for the sum of $20,000 as the for the state to fix the situs of the
value of his seat in the Exchange, on memberships for the purpose of tax the theory that it was capital invested ation, whether they were held by
in his business. It appeared that he residents or nonresidents, at the place
had no personal property within the within the state where the exchange state, unless his seat in the Exchange was located."
was such, that his sole business was A like conclusion was reached in
buying and selling stocks on the case of State ex rel. Goetzman v. mission on the floor of the Exchange, Minnesota Tax Commission (1917)
and that he had no money invested in 136 Minn. 260, 161 N. W. 516, a
that business. It was held that the proceeding to review the action of the
membership was a personal privilege, Minnesota tax commission in the
which, although it was property, was assessment of certain memberships
not capital invested in business within the Minneapolis Chamber of Com
in the meaning of the tax law, and for merce. One of the relators, it ap
that reason he was not taxable on it. peared, was a resident of Minneapolis,
Referring to Austen Brigham another was a resident of the state
(N. Y.) supra, the court said: “The outside of Minneapolis, and the third
learned justice did not consider, as it was a nonresident of the state. After seems to us, the difference between the referring to the rights and privileges general definition of property in the which attend membership in such Statutory Construction Act and in the associations, the court said: “Such cases cited by him, and the limited rights and privileges give whatever definition contained in the Tax Law;
but he puts his decision solely upon not be taxable if owned by a resident; the ground that, the membership in therefore, it necessarily followed that the Stock Exchange being property, it would not be taxable when owned within the broad, general definition, by a nonresident, as under $ 7 the the money used to buy it was a sum Tax Law property was taxable as invested in business. We are unable personal property only "to the same to agree with his reasoning, and there extent as if owned by a resident.” It fore cannot adopt the conclusion was further held that the value of a which he reached." The decision in seat in the Stock Exchange was not People ex rel. Lemmon v. Feitner was capital invested in business in the affirmed by the court of appeals in state of New York, although Vann, (1901) 167 N. Y. 1, 82 Am. St. Rep. 698, J., in a concurring opinion, said: “I 60 N. E. 265, the court holding that think the value of the seat of the the definition of personal property as relator is capital invested in business, contained in the Tax Law did not but it is not taxable, because the include a membership in a stock taxing statute does
cover it." exchange, and consequently it would
W. F. F.
HERBERT FLETCHER, Respt.,
New Jersey Court of Errors and Appeals - February 28, 1921.
(- N. J. - 112 Atl. 887.)
Definition — "similar."
1. The word “similar" is generally interpreted to mean that one thing has a resemblance in many respects, nearly corresponds, is somewhat like, or has a general likeness, to some other thing, and not to mean
identical in form and substance, although in some cases "similar" may · mean "identical" or "exactly like."
[See note on this question beginning on page 94.] Contract construction rule. instrument itself, yet, where the con
2. The cardinal rule in the con struction is doubtful, the court may struction of all contracts, including look into the surrounding circumcontracts of sale, is that the court stances, and avail itself of such light must, if possible, ascertain and give as they may afford, in ascertaining effect to the mutual intention of the the true meaning of the language and parties, as far as that may be done terms employed. without the violation of legal princi [See 6 R. C. L. 849.] ples.
Construction against author. [See 6 R. C. L. 835; 23 R. C. L. 4. Where a contract is ambiguous, 1328.]
it will be construed most strongly surrounding circumstances.
against the party preparing it or em3. While a written instrument must ploying the words concerning which be construed according to the intent doubt arises. of the parties as manifested by the [See 6 R. C. L. 854.]
Headnotes by TRENCHARD, J.
APPEAL by defendant from a judgment of the Supreme Court affirming a judgment of the District Court of Jersey City in favor of plaintiff in
(- N. J. —, 112 Atl. 887.) an action brought to recover the balance alleged to be due on certain articles sold and delivered by plaintiff to defendant. Affirmed.
The facts are stated in the opinion of the court.
Mr. Raymond P. Wortendyke, for We think that the motion for a respondent:
judgment for the defendant was The word “similar” means nearly rightly denied. The contract price corresponding, resembling in many
of the presses was $1,231. The respects, having a general likeness. Mitchell v. McCullough, 12 Ohio C.
presses were delivered to the deC. 763, 4 Ohio C. D. 471; 36 Cyc. 457, fendant, and it was a fair inference note 21; State ex rel. Butte v. Weston,
from the evidence that the only 29 Mont. 125, 74 Pac. 415; Standard
complaint respecting them was that Fireproofing Co. v. St. Louis Expand they "were not according to the ed Metal Fireproofing Co. 177 Mo. specifications," and did not "include 559, 76 S. W. 1008.
pressure gauge, siphon, and trough.” The intention of the parties to a
The plaintiff promptly went to decontract, as collected from the entire
fendant's factory, and he testifies instrument, must prevail unless it is subversive of some established rule of
that the defendant then complained law; and the court, in construing an
that there were no "troughs and ambiguous contract, may resort to pressure gauges," and that "a few proof of the circumstances under wood-screw heads were knocked which the contract was made, to aid off," and that the defendant promit in ascertaining the intention of the ised that if these were furnished parties.
it "would make settlement of the United Boxboard & Paper Co. v. Mc
bill.” The plaintiff further testified Ewan Bros. Co. (1910) N. J. Eq. 76 Atl. 550; Ryer v. Turkel, 75 N.
that he supplied the screw heads,
"furnished the pressure gauges," J. L. 677, 70 Atl. 68. Words will be construed most
and “allowed him (defendant) for strongly against the party who used furnishing the troughs.” Shortly them.
thereafter the defendant paid $1,American Lithographic Co. v. Com 000 on account of the purchase mercial Casualty Ins. Co. 81 N. J. L.
price, and has always retained and 271, 80 Atl. 25; 17 Am. & Eng. Enc.
used the presses.
We think the Law, 2d ed. 14; 2 Parsons, Contr. 506; Stone v. United States Casualty Co. 34 testimony amply supports the judgN. J. L. 371; Anders v. Supreme Lodge, ment for the plaintiff (the judge K. H. 51 N. J. L. 175, 17 Atl. 119.
having made proper allowance for Trenchard, J., delivered the opin
the defendant's expenditure for the ion of the court:
troughs). The defendant company gave the
The defendant's contention at the plaintiff an order in writing to de trial was, and now is, that its moliver to it three presses, "similar to tion for judgment should have been our present Shriver presses,” which
granted because the presses were order the plaintiff accepted. Pur not "similar to our present Shriver suant thereto the plaintiff delivered presses," as required by the order, three presses to the defendant, and and this argument is based upon the this suit was brought to recover the
insistence that the use of the word unpaid part of the contract price "similar" meant that they must be (and for some other articles fur “exactly like" the Shriver presses. nished). The defendant filed a set We think that there is no merit in off and recoupment for expenses
that contention. The cardinal rule which it claims resulted from mak in the construction ing the presses conform to the con of all contracts, in- constructiontract. The trial judge, sitting with- cluding contracts out a jury, found for the plaintiff, of sale, is that the court must, if and the defendant appeals.
possible, ascertain and give effect to We are of the opinion that the the mutual intention of the parties,
as far as that may be done without the contract, certain plans or drawthe violation of legal principles. ings, to which the presses bargained Melick v. Pidcock, 44 N. J. Eq. 525, for were intended to conform, and 6 Am. St. Rep. 901, 15 Atl. 3; Unit to which those delivered, accepted, ed Boxboard & Paper Co. v. McEwan and in part paid for did in fact conBros. Co. – N. J. Eq. – 76 Atl. form, and that such plans or draw550. While a written instrument ings had a general likeness to, but must be construed according to the were not exactly like, the Shriver intent of the parties as manifested presses. We therefore think that
by the instrument the trial judge rightly concluded -sarronnding circumstances.
itself, yet, where that by the use of the word "simi
the construction is lar” the parties did not intend that doubtful, the court may look into the presses bargained for must be the surrounding circumstances, and “exactly like” the Shriver presses. avail itself of such light as they And this view is strengthened by may afford in ascertaining the true the fact that the ambiguous words meaning of the language and terms in question were the words of the employed. Morris Canal & Bkg. defendant, and the rule is that Co. v. Matthiesen, 17 N. J. Eq. 385; where a contract is ambiguous it United Boxboard & Paper Co. v.
will be construed most strongly McEwan Bros. Co. - N. J. Eq. against the party 76 Atl. 550; Ryer v. Turkel, 75 N. preparing it or em
nearly corresponds, for ambiguities in his own expres-
has a general like other to contract with him on the
These views, in effect, dispose of Turning to the evidence, we find every question argued. that it tended to show that the par The judgment below will be af. ties had before them, when making firmed, with costs.
Meaning of word "similar."
I. Scope of note, 94
that use of the phrase having deII. Definition, 94.
veloped a considerable body of law III. Construction, 95.
which is pertinent only to the subject
of railroad rate regulation. 1. Scope of note. This annotation discusses not only
II. Definition. the general definition of the word "similar," but the construction which
The word "similar” has been generhas been given to it as used in various
ally interpreted to mean that one contexts. It excludes, however, the thing has
a resemblance in many construction of the phrase, “similar respects, nearly corresponds, is somecircumstances and conditions," what like, or has a general likeness, used in the Interstate Commerce Act, to some other thing.
United States.-Greenleaf v. Good resembling in many particulars, somerich (1875) 1 Hask. 586, Fed. Cas. No. what like, having a general likeness.' 5,778, affirmed in (1880) 101 U. S. Webster's Int. Dict. Worcester defines 278, 25 L. ed. 845; United States v. it as 'like, resembling, having a resemKomada (1908) 89 C. C. A. 385, 162 blance.' And the Century Dictionary Fed. 465, affirmed in (1909) 215 U. S. defines it: 'Having characteristics in 392, 54 L. ed. 249, 30 Sup. Ct. Rep. 136. common, like in form, appearance,
Alabama.--State ex rel. Sigsbee v. size, qualities, relations, etc.; having Birmingham (1908) 160 Ala. 196, 48 a more or less marked resemblance; So. 843.
in some respects identical; bearing a Colorado.- People ex rel. Griffith v. resemblance.' So, in arriving at its Standard Home Co. (1915) 59 Colo. meaning in legislation, it is necessary 355, 148 Pac. 869; Wassenich to consider its connection, and the Denver (1919) 67 Colo. 456, 186 Pac. object intended to be accomplished by 533.
its use." Massachusetts.-Com. V. Fontain In Rhode Island Hospital Trust Co. (1879) 127 Mass. 452.
v. Olney (1887) 16 R. I. 184, 13 Atl. Montana.—State ex rel. Butte v. 118, the court said: “A thing cannot, Weston (1903) 29 Mont. 125, 74 Pac. strictly speaking, be similar to itself; 418.
for similarity is not identity, but reNew Jersey.-See the reported case semblance between different things.” (FLETCHER V. INTERSTATE CHEMICAL In other jurisdictions, however, it Co. ante, 92).
is held that “similar" may New York.-Greenbaum v. De Jong “identical," as a thing may be similar (1917) 166 N. Y. Supp. 1042.
to itself in that it is “exactly alike.” Ohio. Mitchell McCullough Krakowski v. United States (1908) (1893) 4 Ohio C. Dec. 471, 1 Ohio Dec. 88 C. C. A. 252, 161 Fed. 89; State ex 510.
rel. Sigsbee v. Birmingham (Ala.) Oklahoma.-Commercial Nat. Bank Com. v. Fontain (Mass.) and Orr v. v. Phillips (1916) 61 Okla. 179, 160 Wright (Tex.) supra. Pac. 920.
Similar affidavit - assessment book. Vermont. Fidelity & B. Co. v.
It has been held that where an Brown (1918) 92 Vt. 390, 104 Atl. 234.
ordinance required the county clerk Canada.—Canada Glue Co. v. Gali to deliver a duplicate assessment book bert (1909) Rap. Jud. Quebec 36 C. S.
to the city treasurer with an affidavit 473, 18 Ann. Cas. 791.
attached "similar” to one required by In usual sense,
the word a certain statute, the fact that the "similar" has been held not to mean
affidavit required by such statute identical in form and substance. State
would not answer all of the purposes ex rel. Butte v. Weston (Mont.);
of the ordinance was no objection, Mitchell McCullough V.
since under the ordinance the affidavit
(Ohio); Greenbaum V. De Jong (N. Y.) need go no futher than the needs of supra; Rhode Island Hospital Trust the ordinance required. State ex rel. Co. v. Olney (1887) 16 R. I. 184, 13 Atl. Butte v. Weston (1903) 29 Mont. 125, 118; Chahoon v. Com. (1871) 21 Gratt.
74 Pac. 418. (Va.) 822; Canada Glue Co. v. Gali Similar appliances railroad crossing. bert (Can.) supra.
Under a provision in a contract In State ex rel. Sigsbee v. Birming between two railroad corporations ham (Ala.) supra, the court said: “The relative to a crossing, that, “in case word 'similar' is derived from the flagmen or switchmen are required at Latin word ‘similis,' meaning 'like;' and by reason of the said crossing, and while its meaning in some con the said second party shall pay the nections is 'exactly corresponding, entire cost of such flagmen or watchprecisely alike, yet it is frequently men, and also the entire cost and exused to mean 'nearly corresponding, pense of constructing and maintaining