Ashley v. Cathcart

49 So. 75 | Ala. | 1909

ANDERSON, J.

We fully recognize the rule that in the construction of contracts the whole instrument should be considered in determining the meaning of any or all of its parts. The contract should be supported, if possible, rather than defeated. All parts should be construed, if possible, so as to give validity and effect to each, and all instruments should be construed contra proferentem; that is, against him who gives, or undertakes, or enters into an obligation. — Comer v. Bankhead, 70 Ala. 136; 2 Parsons on Contracts, 13 16; Chicago v. Sheldon, 9 Wall, 50, 19 L. Ed. 594. But we think the contract under consideration, after applying the foregoing rule against the appellee to its construction clearly and unreservedly gave the apellee the right to terminate same by failing to furnish logs, as he agreed to furnish only such logs as he desired to have sawed. If he did not desire to do so, he did not, under the contract, have to do so. It is true .the timber to be sawed embraced all on the “Richardson” tract, except the 1 and 2 oak logs, “and the said contract shall continue as long as the second party fully complies with same, and until the timber on the Richardson tract shall become exhausted. Then this contract shall be at an end, unless otherwise terminated before that time.” We are therefore in a measure relieved from an interpretation of the third clause of the contract, as the parties themselves evidently meant and understood that it gave the appellee the. option of not furnishing the logs, unless he desired to do so, by expressly recognizing in clause 4 that it could be terminated by Cathcart before all the timber on the Richardson land was exhausted; for, in fixing the period of its termination, it guardedly says, “unless otherwise terminated before that time,” thus emphasizing that a right to terminate existed before all the timber was cut and sawed. It evidently had no reference to a termination by mutual consent, as the parties had this right, independent of any clause or proviso in the contract.

The trial court did not err in sustaining the defendant’s demurrers to the complaint, and the judgment of the city court is affirmed.

Affirmed.

Dowdell, Simpson, Denson, and Mayfield, JJ., concur. Tyson, C. J., dissents.