59 Fla. 215 | Fla. | 1910
Lead Opinion
I. B. Hilson, called herein the plaintiff,
The declaration as at first filed contained two counts. The first count is as follows:
“The plff. sues the deft, for and in consideration of the sale and delivery by plff. to it of a large amount of personal property exceeding in value $11,000 agreed by an instrument in writing which is hereto attached and made a part hereof, that is the deft, would indemnify and release the plff. from certain obligations of the Capital Publishing Co., a corporation, and of the plff. specified in said writing; that among said obligations specified was an obligation or indebtedness of the Capital Publishing Co., .to a certain concern therein called ‘Mergenthaler Company’ for about the sum of sixty-five hundred dollars; that before the beginning of this suit the said obligation or indebtedness amounting to sixty-five hundred dollars became and was due and payable to the said concern, and plaintiff requested the deft to pay the same but that the defendant did refuse and- has continued to refuse to pay of the said indebtedness more than the sum of two thousand dollars leaving due and unpaid the sum of forty-five hu-pdred dollars, which the. pltff has been compelled to pay and has1 before the institution of this suit paid to the said concern, whereby the deft has become and is indebted to pltff in the sum of forty-five hundred dollars.”
The second count is like the first, except that the obligation or indebtedness against which-the defendant is alleged to have released and indemnified the plaintiff* is that of the plaintiff instead of the Capital Publishing Company. . •
“Capital City Bank (State Depository)
G. W. Saxon, President
J. A. Ball, Yice President Branch at Apalachicola, Fla. T. E. Perkins, Cashier .
Jno. M. Bell Asst Cashier
Capital $50000. Tallahassee, Fla., May 29, 1906.
We hereby indemnify and release Mr. I. B. Hilson, from the following obligations of the Capital Publishing Co. and himself personally.
Towers' M’FG Co., about 87.00
S. P. Richards 125.00
H. & W. B. Drew Co., 100.00
Morning News 70.00
Schoemaker & Co., 125.00
Cutter Rice & Co., á2p.00
Merganthaler Co., 6500.00
McDougall 350.00
Whitlock'Prtg Co., 675.00
Antietam Paper Co., 1500.00
Electric Co., 176.00
Capital City Bank,'
G. W. Saxon, Prestd.”
Three plea's were filed by the defendant as follows:
“1. That it never was indebted as alleged.
2. That is did not promise as alleged.
3. That the indebtedness of $1500, alleged in said declaration to have been paid by the plaintiff' to ‘Merganthaler Company was not an obligation of the Capital Publishing Company' and plaintiff personally from the payment of which the defendant agreed to indemnify and reléase the plaintiff”
Reverting to the several counts of the declaration it will be observed that each of them makes the agreement of the Capial City Bank a part of itself. It is the basis of the suit.
It follows from the foregoing rule of construction of declarations that in its construction that no intendments favorable to the plaintiff can be indulged in. It is also laid down as a rule in the construction of contracts that if the terms of a contract appear on their face to be inserted for the benefit of one of the parties, he will be considered as having inserted such terms and as having chosen the language thereof. Any ambiguity in such language is, therefore, to be construed more strongly against the party making use of such language. The rule is summarized in the maxim “Fortius contra proferentem.” 2 Page on Contracts, Paragraph 1122. The agreement made a part of each count states the undertaking of the Capital City Bank in the following words: “We hereby indemnify and release Mr. I. B. Hilson from the following obligations of the Capital Publishing Co. and himself personally.” The declaration counts on the copulative conjunction “and” used in the above quotation to connect the Capital Publishing Co. with the word “himself”, as being used in the sense of the disjunctive conjunction “or”, and as being an indemnity against the separate debts of the Capital Publishing Co. and I. B. Hilson. Now, there is no doubt that such a meaning may be given to the word “and” when the whole context of the instrument in which it is used indicates that such a meaning should be given it, or when the situation of the parties and the surrounding circumstances show that the parties to the agreement intended that it should be so used. Snow v. Pressey, 85 Me. 408, 27 Atl. Rep. 272; Hale v. Sweet, 40 N. Y. 97; but when such an intention is
In the case of Mayer v. Cook, 57 N. Y. Supp. 94, it was held that “Under a guaranty to pay ‘all bills of goods bought by B and M’ not to exceed a gross sum, the guarantor is not liable for sales to either party individually, but only for joint sales.” The court says in its opinion: “It is manifest that an engagement to answer for the obligations of debtors collectively cannot be extended to their individual obligations.” It is further said “while courts have construed ‘and’ as ‘or’ and vice versa such construction has been sanctioned only for strong reasons, and in order to carry out the manifest intention of the parties.” See also Robinson v. Southern Pac. Co., 105 Cal. 526, text 541, 38 Pac. Rep. 94. In 2 Am. & Eng. Ency. of Law (2nd ed.) p. 333, title'“And,” it is said: “In order to effectuate the intention of the testator or legislature the word ‘and’ is sometimes construed to mean ‘or’ and vice versa. This construction, however, is not resorted to except for strong reasons. Indeed, to say that ‘or’ can ever mean ‘and’ seems to be an inaccurate expression. It should rather be said that for strong reasons and in conformity with a clear intention ‘or’ has been changed or removed and ‘and’ substituted in its place or vice versa.” In the case of Morgan v. Thomas, L. R. 9, Q. B. Div. 643, cited in a note under the foregoing title, JESSEL, M. R. says: “You will find it said in some cases that ‘or’ means ‘and;’ but ‘or’ never does mean ‘and’ unless there is a context which shows it is used for ‘and’ by mistake. The instance I have given is this: Suppose a testator said ‘I give the black cow on which I usually ride to A. B.,’ and he usually rode on a black horse; of course the horse would
In the case of Kirton v. Atlantic Coast Line R. Co., supra, this court has said: “A demurrer to pleas reaches back to the declaration, and if the declaration is defective in substance the judgment of the court sustaining such demurrer must be held to be correct regardless of the sufficiency of the pleas. A declaration in an action at law should allege distinctly and clearly every fact that is essential to the plaintiff’s right of action. Where the allegations of a declaration containing only one count are repugnant to and inconsistent with each other such allegations neutralize each other and the declaration will be held bad on general demurrer provided such repugnancy and inconsistency relate to matters of substance and not of form only.” It was also held by this court in the case of State v. Seaboard Air Line Railway, 56 Fla. 670, 47 South. Rep. 986, that “where allegations of a declaration containing only one count are repugnant to and inconsistent with each other such allegations neutralize each other and the declaration will be held bad on demurrer. A like result must necessarily follow if the allegations or statements contained in a cause of action which is made a part of the declaration by apt words, are repugnant to and inconsistent with the allegations in the declaration.”
In the instant case as before stated in each and every
Judgment reversed.
Capital City Bank, a Corporation, Plaintiff in Error, v. I. B. Hilson, Defendant in Error.
Rehearing
On Rehearing.
A petition for rehearing has been filed in this case setting up that there is error in the original opinion in several particulars. First, that the court erred in confining itself to deciding that the word “and” used in the contract is “conjunctive”, and not “disjunctive”. “That is, that prima facie it means ‘and’ not ‘or’.”
The petition as a literary criticism is interesting and instructive, rich in classical citation and elegant in expression. It appears to us, however, that it is inexact in the statement that the defendant demurred to the declaration. We are unable to find in the record any such demurrer, and the opinion filed shows that it was the plaintiffs own demurrer to defendant’s pleas which we felt constrained to visit on the declaration. As to the first contention, it is argued in the petition that “the question is not whether in this instrument “and” means “and” or “or” or—whether it is conjunctive or disjunctive—but what is the meaning and effect which would be given it as a conjunctive conjunction.” This contention seems to us to be irreconcilable with that of the brief of the defendant in error which was before us when the opinion was filed. The argument of the brief is: “If the view be taken that the words ‘of the Capital Publishing Company and himself personally’ are excludingly descriptive of the kind of obligations, then we say that the construction of those words should be such as to substitute ‘or’ for the word ‘and’ so that it could read ‘of the Capital Publishing-Company or himself personally. It frequently happens that the word “and” means “or”, and will be so construed by the court in order to carry out the intention of the parties.” So we see that we are invited by the brief of the defendant in error to construe the word “and” as meaning “or,” and in the petition we are assured that is not the question at all. It was because of this contention in the brief that we entered into an examination of the meaning of the word “and” as afforded in the decisions
Again, the agreement reads: “We hereby indemnify and release I. B. Hilson from the following obligations of the Capital Publishing Company and himself personally.” As it is Mr. Hilson alone who is protected by the indemnity, and not the Capital Publishing Company, it would seem natural that the contract was worded as it is, in order that he might be protected against obligations of the Capital Publishing Company for which he was jointly liable with that company; for in the case as stated in the declaration, we can discover no reason why he should be protected against the several obligations of the company, for which he was not liable. If the agreement does not embrace the several obligations of the Capital Publishing Company, we do not see why the same agreement should embrace the several obligations of Mr. Hilson. We have given the petition careful consideration, and
The petition is denied.
All concur.
Concurrence Opinion
concurring.
I can readily see how this contract means that the Bank will and does indemnify and release Mr. I. B. Hilson from the obligations of the Capital Publishing Company and the obligations of himself personally as set forth in the list of obligations that follows,—that the sentence under construction may be a syncopated one, the word “obligations” being understood to follow the word “and” in the quoted sentence of the contract, thus showing a several obligation.
I can see too, how the contract is subject to the construction put upon it in the opinion prepared by Mr. Justice HOOKER. This being so, the sentence is capable of two constructions and must, under the rules of law, be construed most strongly against the one claiming under the contract.
It may be, from a reading of this declaration, the whole of the transaction between these parties is not before us. Perhaps, the matter may be so stated as to make it clear that the Bank intended to assume the several liability of Hilson independent of any connection of the Publishing Company.