33 Ga. App. 305 | Ga. Ct. App. | 1924
If the petition, for any other reason than that mentioned in the judgment of dismissal, had failed to set forth a cause of action, we possibly should affirm the judgment, even though we disagreed with the learned trial judge in the ground upon which the dismissal was based; but since counsel for both parties have devoted their arguments mainly to the point upon which the court below disposed of the matter, and since we are satisfied that whether the plaintiff was entitled to recover all of the damages for which he sued, his petition was good for a recovery of at least-a part of the same, and, therefore, not subject to be stricken in its entirety (Port Wentworth Terminal Corporation v. Leavitt, 24 Ga. App. 650 (1), 101 S. E. 766), unless it was fatally defective for the reason just indicated, we will limit this opinion to a consideration of that question alone.
The clause which was held by the trial court to be fatal to the writing as an enforceable undertaking oh the part of the defendant was as follows: “In case of destruction of our mills, in whole or in part, or stoppage by strikes or other causes, we reserve the right to cancel all or any part of this contract; and the company reserves the right to ship all or any part of this contract as they may deem expedient.” Notice the semicolon. It is insisted, in effect, by the defendant that the clause following that mark of punctuation is to be considered independently of the preceding part of the sentence, and thus as attaching an unconditional reservation of the right to ship only such part of the fertilizers as it might deem expedient. On the other hand, it is contended by the plaintiff that this clause was limited by the language of the preceding clause, and reserved to the defendant the right to determine the quantity of fertilizers it would ship under the agreement, only in the event of the destruc
The writing itself would indicate that if a contract exists, the defendant was the party who proposed it, since it is in the form of a letter addressed to the plaintiff by one of the defendant's salesmen, with the plaintiff's acceptance and the defendant’s approval subsequently entered thereon. Buick Motor Co. v. Thompson, 138 Ga. 282 (75 S. E. 354). It is a well-settled rule that in the construction of a contract it is to be considered as a whole, and that no part of it is to be discarded if it can be avoided. “If the construction is doubtful, that which goes most strongly against the party executing the instrument, or undertaking the obligation, is generally to be preferred.” Civil Code (1910), § 4268 (4). If a contract is so framed as to be susceptible of two constructions, that interpretation which is least favorable to the author or'party proposing it should generally be accepted. Candler Investment Co. v. Cox, 4 Ga. App. 763 (1) (62 S. E. 479); Ætna Insurance Co. v. Lipsitz, 130 Ga. 170 (2) (60 S. E. 531, 14 Ann. Cas. 1070); Moorefield v. Fidelity Mutual Life Ins. Co., 135 Ga. 186 (2) (69 S. E. 119). “When it is possible to do so without contravening any rule of law, the courts- will construe a contract as binding on both the parties, where, from the language of the contract, the conduct of the parties, and all the attendant circumstances, it appears that the intention of the parties was that both should be bound by the sale, and substantial justice requires that the contract be given effect. Civil Code (1910), § 4268 (3); Mill Wood & Coal Co. v. Flint River Cypress Co., 16 Ga. App. 636 (1), 637 (85 S. E. 943); Mutual Life Ins. Co. v. Durden, 9 Ga. App. 797 (3), 800 (69 S. E. 119).” Good Roads Machinery Co. v. Neal, 21 Ga. App. 160 (3) (93 S. E. 1018).
“The cardinal rule of construction is to ascertain the intention of the parties. If that intention be clear, and it contravenes no rule of law, and sufficient words be used to arrive at the intention, it shall be enforced, irrespective of all technical or arbitrary rules of construction.” Civil Code (1910), § 4266. Every other rule is subservient to this one. “The fundamental rule, the rule which swallows up almost all others in construing a paper, is to give it that meaning which will best carry into effect the intent of the parties. This is the object of rules of interpretation, to discover
The instrument here under consideration begins with the statement: “We [the defendant] have this day agreed to ship to you [the plaintiff], subject to the acceptance of the company,” twenty tons of fertilizer of various brands and grades at stated prices, to be paid for on a certain day named. Following these are sundry other provisions which it were idle to propose unless the defendant actually intended a contract of sale. Again, the right was reserved by the defendant to cancel the contract “in case of any occurrence” that it might regard as unfavorable to the plaintiff’s credit. This clause would appear to be wholly unnecessary if the provision, “the company reserves the right to ship all or any part of this contract as they may deem expedient,” established for it an avenue of escape from any obligation except to deliver such infinitesimal part of the goods as it might choose, in accordance with its own opinion of expediency. If this part of the instrument be given the effect which the defendant claims for it, it is sufficiently broad to render wholly superfluous the stipulation with respect to the cancellation of the agreement in the event of any happening that the defendant might have regarded as unfavorable to the plaintiff’s credit.-
We have already called attention to the punctuation. If in place of the semicolon in the sentence quoted at the beginning of this opinion there had been no mark at all, or if instead we had found a comma, we think it perfectly clear that the reservation of the right to ship all or any part of the goods, as the defendant might deem expedient, would have been subject to the conditions stated in the other part of the sentence. Shall we be persuaded to a contrary conclusion merely because of the semicolon, or more accurately, because of the difference between a comma and a semicolon? It might be possible for a case to arise in which all other considerations were evenly balanced and that the difference between these marks of punctuation might, like a feather’s weight, turn the scale to one side rather than the other; but this is not a case of that
We think that the entire sentence under consideration, construed with reference to the other provisions of the writing, means substantially this: that in case of the destruction, either in whole or in part, of the defendant’s mills, or iirthe event of stoppage by strikes or other causes, the defendant reserved the right to cancel “all or any part of this contract,” and might exercise such right of cancellation according as it, and not others, might deem expedient; the latter portion of the sentence being inserted merely for the purpose of making clear that if either of the named conditions arose, the portion of the goods which the defendant might then supply, if it did not see fit to fill the contract in its entirety, was to be determined by the judgment alone of the defendant.
Judgment reversed.
