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it did not matter whether it was real or personal property, or that it added to the owner's credit and facilities in Ohio.

In a few cases the courts have been called on to determine whether a membership in a stock exchange is taxable at the location of the exchange despite the nonresidence of the member. Thus, in Rogers v. Hennepin County (1915) 240 U. S. 184, 60 L. ed. 594, 36 Sup. Ct. Rep. 265, affirming (1914) 124 Minn. 539, 145 N. W. 112, there was involved the authority of the state of Minnesota to tax a membership owned by a citizen of another state in the Minneapolis Stock Exchange, and it was urged that such a membership was an intangible right held by the member at his domicil. A contrary view was taken by the court however. Hughes, J, saying: "But it sufficiently appears from the allegations that the memberships represented rights and privileges which were exercised in transactions at the exchange in the city of Minneapolis, and we are of the opinion, applying a principle which has had recognition with respect to credits in favor of nonresidents arising from business within the state, and in the case of shares of stock of domestic corporations, that it was competent for the state to fix the situs of the memberships for the purpose of taxation, whether they were held by residents or nonresidents, at the place within the state where the exchange was located."

A like conclusion was reached in the case of State ex rel. Goetzman v. Minnesota Tax Commission (1917) 136 Minn. 260, 161 N. W. 516, a proceeding to review the action of the Minnesota tax commission in the assessment of certain memberships in the Minneapolis Chamber of Commerce. One of the relators, it appeared, was a resident of Minneapolis,

another was a resident of the state outside of Minneapolis, and the third was a nonresident of the state. After referring to the rights and privileges which attend membership in such associations, the court said: "Such rights and privileges give whatever

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So, it was held in Austen v. Brigham (1897) 67 N Y. Supp. 891, that a membership or "seat" owned by a nonresident in the New York Stock Exchange represented money invested in business in New York; that the holder was engaged in business in New York; and that consequently such membership was taxable under the statute (Tax Law, § 7, McKinney, Consol. Laws, bk. 59, p. 38) providing that nonresidents doing business in the state of New York "shall be assessed and taxed on all sums invested in any manner in said business, the same as if they were residents of this state."

But a different conclusion was reached in People ex rel. Lemmon v. Feitner (1900) 56 App. Div. 280, 67 N. Y. Supp. 893, a proceeding to review an assessement. The relator, a resident of New Jersey, was a member of the Stock Exchange in New York city, and, as such member, was assessed for the sum of $20,000 as the value of his seat in the Exchange, on the theory that it was capital invested. in his business. It appeared that he had no personal property within the state, unless his seat in the Exchange was such, that his sole business was buying and selling stocks on commission on the floor of the Exchange, and that he had no money invested in that business. It was held that the membership was a personal privilege, which, although it was property, was not capital invested in business within the meaning of the tax law, and for that reason he was not taxable on it. Austen V. Brigham (N. Y.) supra, the court said: "The learned justice did not consider, as it seems to us, the difference between the general definition of property in the Statutory Construction Act and in the cases cited by him, and the limited definition contained in the Tax Law;

Referring to

but he puts his decision solely upon the ground that, the membership in the Stock Exchange being property, within the broad, general definition, the money used to buy it was a sum invested in business. We are unable to agree with his reasoning, and therefore cannot adopt the conclusion which he reached." The decision in People ex rel. Lemmon v. Feitner was affirmed by the court of appeals in (1901) 167 N. Y. 1, 82 Am. St. Rep. 698, 60 N. E. 265, the court holding that the definition of personal property as contained in the Tax Law did not include a membership in a stock exchange, and consequently it would

not be taxable if owned by a resident; therefore, it necessarily followed that it would not be taxable when owned by a nonresident, as under § 7 the Tax Law property was taxable as personal property only "to the same extent as if owned by a resident." It was further held that the value of a seat in the Stock Exchange was not capital invested in business in the state of New York, although Vann, J., in a concurring opinion, said: "I think the value of the seat of the relator is capital invested in business, but it is not taxable, because the taxing statute does not cover it." W. F. F.

HERBERT FLETCHER, Respt.,

V.

INTERSTATE CHEMICAL COMPANY, Appt.

New Jersey Court of Errors and Appeals — February 28, 1921.

Definition "similar."

(N. J., 112 Atl. 887.)

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.

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instrument itself, yet, where the construction is doubtful, the court may look into the surrounding circumstances, and avail itself of such light as they may afford, in ascertaining the true meaning of the language and terms employed.

[See 6 R. C. L. 849.] Construction

against author.

4. Where a contract is ambiguous, it will be construed most strongly against the party preparing it or employing the words concerning which doubt arises.

[See 6 R. C. L. 854.]

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. Frank G. Turner for appellant.
Mr. Raymond P. Wortendyke, for
respondent:

The word "similar" means nearly corresponding, resembling in many respects, having a general likeness.

Mitchell v. McCullough, 12 Ohio C. C. 763, 4 Ohio C. D. 471; 36 Cyc. 457, note 21; State ex rel. Butte v. Weston, 29 Mont. 125, 74 Pac. 415; Standard Fireproofing Co. v. St. Louis Expanded Metal Fireproofing Co. 177 Mo. 559, 76 S. W. 1008.

The intention of the parties to a contract, as collected from the entire instrument, must prevail unless it is subversive of some established rule of law; and the court, in construing an ambiguous contract, may resort to proof of the circumstances under which the contract was made, to aid it in ascertaining the intention of the parties.

United Boxboard & Paper Co. v. McEwan Bros. Co. (1910) N. J. Eq. 76 Atl. 550; Ryer v. Turkel, 75 N. J. L. 677, 70 Atl. 68.

Words will be construed most strongly against the party who used them.

American Lithographic Co. v. Commercial Casualty Ins. Co. 81 N. J. L. 271, 80 Atl. 25; 17 Am. & Eng. Enc. Law, 2d ed. 14; 2 Parsons, Contr. 506; Stone v. United States Casualty Co. 34 N. J. L. 371; Anders v. Supreme Lodge, K. H. 51 N. J. L. 175, 17 Atl. 119.

Trenchard, J., delivered the opin

ion of the court:

The defendant company gave the plaintiff an order in writing to deliver to it three presses, "similar to our present Shriver presses," which order the plaintiff accepted. Pursuant thereto the plaintiff delivered three presses to the defendant, and this suit was brought to recover the unpaid part of the contract price (and for some other articles furnished). The defendant filed a setoff and recoupment for expenses which it claims resulted from making the presses conform to the contract. The trial judge, sitting without a jury, found for the plaintiff, and the defendant appeals.

We are of the opinion that the

judgment should not be disturbed. We think that the motion for a judgment for the defendant was rightly denied. The contract price of the presses was $1,231. The presses were delivered to the defendant, and it was a fair inference from the evidence that the only complaint respecting them was that they "were not according to the specifications," and did not "include pressure gauge, siphon, and trough." The plaintiff promptly went to defendant's factory, and he testifies that the defendant then complained that there were no "troughs and pressure gauges," and that "a few wood-screw heads were knocked off," and that the defendant promised that if these were furnished it "would make settlement of the bill." The plaintiff further testified that he supplied the screw heads, "furnished the pressure gauges," and "allowed him (defendant) for furnishing the troughs." Shortly thereafter the defendant paid $1,000 on account of the purchase price, and has always retained and used the presses. We think the testimony amply supports the judgment for the plaintiff (the judge having made proper allowance for the defendant's expenditure for the troughs).

The defendant's contention at the trial was, and now is, that its motion for judgment should have been granted because the presses were not "similar to our present Shriver presses," as required by the order, and this argument is based upon the insistence that the use of the word "similar" meant that they must be "exactly like" the Shriver presses. We think that there is no merit in that contention. The cardinal rule in the construction Contractof all contracts, in- constructioncluding contracts

rule.

of sale, is that the court must, if possible, ascertain and give effect to the mutual intention of the parties,

as far as that may be done without the violation of legal principles. Melick v. Pidcock, 44 N. J. Eq. 525, 6 Am. St. Rep. 901, 15 Atl. 3; United Boxboard & Paper Co. v. McEwan Bros. Co. N. J. Eq. 76 Atl. 550. While a written instrument must be construed according to the intent of the parties as manifested

-surrounding circumstances.

by the instrument itself, yet, where the construction is doubtful, the court may look into the surrounding circumstances, and avail itself of such light as they may afford in ascertaining the true meaning of the language and terms employed. Morris Canal & Bkg. Co. v. Matthiesen, 17 N. J. Eq. 385; United Boxboard & Paper Co. v. McEwan Bros. Co. - N. J. Eq. 76 Atl. 550; Ryer v. Turkel, 75 N. J. L. 677, 70 Atl. 68. Now the contract in question is susceptible of more than one construction. The word "similar" is generally interpreted to mean that one thing has a resemblance in many respects, nearly corresponds,

Definition"similar."

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 cases collected in 18 Ann. Cas. 791 (note).

Turning to the evidence, we find that it tended to show that the parties had before them, when making

I. Scope of note, 94 II. Definition, 94. III. Construction, 95.

the contract, certain plans or drawings, to which the presses bargained for were intended to conform, and to which those delivered, accepted, and in part paid for did in fact conform, and that such plans or drawings had a general likeness to, but were not exactly like, the Shriver presses. We therefore think that the trial judge rightly concluded that by the use of the word "similar" the parties did not intend that the presses bargained for must be "exactly like" the Shriver presses. And this view is strengthened by the fact that the ambiguous words in question were the words of the defendant, and the rule is that where a contract is ambiguous it I will be construed most strongly against the party preparing it or employing the words concerning which doubt arises (American Lithographic Co. v. Commercial Casualty Ins. Co. 81 N. J. L. 271, 80 Atl. 25); the reason for the rule being that a man is responsible for ambiguities in his own expressions, and has no right to induce another to contract with him on the supposition that his words mean one thing, while he hopes the court will adopt a construction by which they would mean another thing more to his advantage.

Construction

against author.

These views, in effect, dispose of every question argued.

The judgment below will be affirmed, with costs.

ANNOTATION.

Meaning of word "similar."

1. Scope of note.

This annotation discusses not only the general definition of the word "similar," but the construction which has been given to it as used in various contexts. It excludes, however, the construction of the phrase, "similar circumstances and conditions," as used in the Interstate Commerce Act,

that use of the phrase having developed a considerable body of law which is pertinent only to the subject of railroad rate regulation.

II. Definition.

The word "similar" has been 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.

United States.-Greenleaf v. Goodrich (1875) 1 Hask. 586, Fed. Cas. No. 5,778, affirmed in (1880) 101 U. S. 278, 25 L. ed. 845; United States v. Komada (1908) 89 C. C. A. 385, 162 Fed. 465, affirmed in (1909) 215 U. S. 392, 54 L. ed. 249, 30 Sup. Ct. Rep. 136.

Alabama.-State ex rel. Sigsbee v. Birmingham (1908) 160 Ala. 196, 48 So. 843.

Colorado.-People ex rel. Griffith v. Standard Home Co. (1915) 59 Colo. 355, 148 Pac. 869; Wassenich V. Denver (1919) 67 Colo. 456, 186 Pac. 533.

Massachusetts.--Com. V. Fontain (1879) 127 Mass. 452.

Montana.-State ex rel. Butte v. Weston (1903) 29 Mont. 125, 74 Pac. 418.

New Jersey.-See the reported case (FLETCHER v. INTERSTATE CHEMICAL Co. ante, 92).

New York.-Greenbaum v. De Jong (1917) 166 N. Y. Supp. 1042.

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v.

In its usual sense, the word "similar" has been held not to mean identical in form and substance. State ex rel. Butte v. Weston (Mont.); Mitchell McCullough (Ohio); Greenbaum v. De Jong (N. Y.) supra; Rhode Island Hospital Trust Co. v. Olney (1887) 16 R. I. 184, 13 Atl. 118; Chahoon v. Com. (1871) 21 Gratt. (Va.) 822; Canada Glue Co. v. Galibert (Can.) supra.

In State ex rel. Sigsbee v. Birmingham (Ala.) supra, the court said: "The word 'similar' is derived from the Latin word 'similis,' meaning 'like;' and while its meaning in some connections is 'exactly corresponding, precisely alike,' yet it is frequently used to mean 'nearly corresponding,

resembling in many particulars, somewhat like, having a general likeness.' Webster's Int. Dict. Worcester defines it as 'like, resembling, having a resemblance.' And the Century Dictionary defines it: 'Having characteristics in common, like in form, appearance, size, qualities, relations, etc.; having a more or less marked resemblance; in some respects identical; bearing a resemblance.' So, in arriving at its meaning in legislation, it is necessary to consider its connection, and the object intended to be accomplished by its use."

In Rhode Island Hospital Trust Co. v. Olney (1887) 16 R. I. 184, 13 Atl. 118, the court said: "A thing cannot, strictly speaking, be similar to itself; for similarity is not identity, but resemblance between different things."

In other jurisdictions, however, it is held that "similar" may mean "identical," as a thing may be similar to itself in that it is "exactly alike." Krakowski v. United States (1908) 88 C. C. A. 252, 161 Fed. 89; State ex rel. Sigsbee v. Birmingham (Ala.) Com. v. Fontain (Mass.) and Orr v. Wright (Tex.) supra.

III. Construction.

Similar affidavit — assessment book.

It has been held that where an ordinance required the county clerk to deliver a duplicate assessment book to the city treasurer with an affidavit attached "similar" to one required by a certain statute, the fact that the affidavit required by such statute would not answer all of the purposes of the ordinance was no objection, since under the ordinance the affidavit need go no futher than the needs of the ordinance required. State ex rel. Butte v. Weston (1903) 29 Mont. 125, 74 Pac. 418.

Similar appliances — railroad crossing. Under a provision in a contract between two railroad corporations relative to a crossing, that, "in case flagmen or switchmen are required at and by reason of the said crossing, the said second party shall pay the entire cost of such flagmen or watchmen, and also the entire cost and expense of constructing and maintaining

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