*1 pe- increase unto paid that the amount so ceeding Court County refunded to the titioner should now be however, think, action Hancock County. We should be without Court in the instant proceeding amount, with to the defendant to deduct prejudice de- thereon, owing petitioner sum interest action. fendant, or to proper recover same indicated, a writ will views Being peremptory of Hancock Coun- Court directing County be awarded Schwartz, L. O. his sal- unto Doctor ty pay petitioner, and Au- July months of month for the ary per $325.00 of the de- right gust, prejudice but without hundred dollar the three fendant to deduct therefrom beginning year for the fiscal increase to him salary 1, 1950, with interest thereon. July awarded.
Writ Conley, et al. Martha Brown Easley George W. Dr. 10384)
(No. 11, 1951. December 26, 1951.Decided Submitted September *2 Given, Judges, Lovins and dissenting Bronson & Bronson B. for Hogg, appel- and William lants. B. for Chafin, appellee.
Lafe Fox, President: 1943,
On the first day July, Conley, Martha Brown in her right own and as widow and executrix of her hus- band, Saltón, George deceased, Conley, Thomas Ella and husband, in her right own and as administratrix of her R. Saltón, deceased, Saltón, A. Russel A. Jr. Virginia and Yost, lessors, Saltón Yost, husband, John and W. her entered into a agreement with Dr. W. Eas- George ley, leasing said Easley is known as the William- Williamson, son Hospital, Memorial located in City West for a Virginia, years, monthly term of three at a $3,400.00. rental of extended, The lease was under thereof, terms for three end years, and made to on June, 30th of 1949. out of Paragraph which grows litigation, this reads as follows: “The if the agrees Lessee covenants
Lessors, or Memorial Hospital, the Williamson dissolved, late a if corporation, or its Trustee it be desire, he, Lessee, shall so un- then that will dertake able, any to collect accounts and bills receiv- 1943, 1, due unto the corporation July as of on the following terms and conditions: “ (a) The accounts and assigned demands be without warranty and without recourse in law or in equity to the Lessee. “ (b) The for, Lessee will make demand debtors, receive from the they may such funds as pay, induced to on account accounts and bills receivable. account “(c) separate The Lessee will keep received, permitted and shall be of the funds so appropriate funds, for himself. and use such “ (d) discharge The off pay Lessee will labor, owing or for or due merchandise an July keep on corporation account thereof. “ Lease, or original (e) At expiration will, turn, unto extended, assign Lessee ac- nominee, Lessors, bills him, unto owing counts receivable which amount of the bills an amount not less than the or to be hereby assigned and accounts recited. unto as hereinbefore warranty without assignment shall be writing demands, re- and without validity as to the assign- as to equity course either in law or or; Lessee assignees in which event amounts as the payment assume
shall said Lessee shall be and Lessors shall the of labor on account assumed *3 the amount so supplies, the amount out exceed Lessee, (d).” as in provided paragraph facts, to and The in relation the accounts following above, in the paragraph quoted other matters mentioned lease, One: At the of the said beginning are admitted. collect which Dr. was Easley permitted the accounts $114,714.85, of which use amounted to sum $15,489.94; The Second: collected the sum of Easley all of which hospital, owing bills aggregate of Para- under pay provisions was Easley required Dr. $5,050.59, a balance which 12, leaving was graph $10,439.35; Three: as his own of was entitled use Easley of those of uncollected accounts The amount 30, lease, was, June his on at the Easley, beginning Dr. $99,224.91; same, 1949, the when he surrendered date uncollected accounts amount of additional Fourth: The Easley op- Dr. the six during years which accumulated $124,204.83; was under his hospital, erated said owed the hospital amount of the bills which The Five: n tovarious $7,061.43. 1949, 30, was June on persons, matter of it is a legitimate dispute, The matter in controversy coming within the act declaratory judgment mentioned, hereinafter is respective rights the les- sors and the lessee under the 1, 1943, lease of July uncollected 30, accounts existing 1949, on June the date when Easley surrendered the hospital to his lessors. contention of- lessors is that the accounts in their en- tirety them; belonged to lessee, contention of the Easley, is that he is entitled to said accounts. As between these parties, there does not seem to be any middle ground, neither party yielding the other on account of any equities involved reason of the nature of the ac- counts, their collectability or otherwise.
This is a declaratory judgment proceeding under provisions 26, of Chapter 1941, Acts of the Legislature, and, above, as stated the controversy is one which comes within the act. The facts narrated above are up set is termed a bill of complaint which the lessors the lease of July 1943, and Woodrow W. Scott and Saltón, Russel A. Jr. are plaintiffs, made the latter by reason of their being the present lessees of the hospital, and being interested in involved, the accounts and Dr. George W. Easley, defendant. Defendant filed his answer and crossbill in which he up sets his claim to the said accounts. The case was heard and the an- bill swer crossbill, 27, 1950, and on October the court rendered written in the opinion case which made a part record, and entered the following judgment: IS,
“IT THEREFORE, ADJUDGED, ORDERED AND DECREED: “1. That accounts receivable Williamson Memorial of June Hospital 1949, which *4 $223,- accounts are of. total sum of 429.94 according audit made by T. R. Joseph filed an exhibit with the defend- ant’s answer, belong and are the property the defendant, Dr. George Easley. W. “2. That the defendant, Dr. George Easley, W. shall account to the plaintiffs $10,- in the sum of 439.35, payable out of the monies collected out the accounts receivable 30, 1949, as of June defendant, Dr. George Easley, that the W.' further $7,- shall account in the sum plaintiffs 061.43, which is likewise to out of paid the said accounts receivable or those collected $17,500.78 plaintiffs; making total sum of to be for by accounted the defendant to the plaintiffs, payable out said accounts receivable to the Williamson Memorial as of June Hospital 30, 1949. Any balance collected on said accounts receivable, $17,500.78 after of said payment sum of to the plaintiffs, defendant, shall Dr. George Easley, W. and the balance of the receivable, 30, 1949, accounts lected, as of June col- shall be turned over and delivered to Dr. George W. and for Easley as own prop- his erty. collected that after And the plaintiffs shall have $17,500.78 total sum of out said shall then turn over to the defendant all the remaining unpaid accounts receivable as June 1949.” 19, 1941, On March at the instance of the plaintiffs, we granted this appeal. of the Court majority is of the there opinion
is no sound basis for the decision of the trial That court. decision completely ignores the express’ provision of Para- 12 of graph in respect accounts, and is based upon chancellor believed to be the equities the situation. Not having before us information as to the amount of the accounts which have been collected 30, 1949, June since the present lessees, or the other we are plaintiffs, in no position deal with the equities case, even if we were permitted to do so. We think, however that we are not permitted to depart the terms of the agreement between the parties, should, far so, so enter possible do a decree within the frame agreement work written the parties made, and in doing so we must deal with which were subject of that agreement.
At this point, agree Court is unable to solu- tion of the case. Two members of the Court would af- court, firm the judgment of the trial re- and two would court, verse the trial and remand the case with directions *5 of sustaining plain- to enter a decree contention of the of this is opinion tiffs in toto. writer position court, remand the of the trial reverse decree to enter a based upon cause with directions decree I which will endeavor to state. principles controversy may to me that the whole be seems determined, agree- within the terms of the equitably First, accounts ment, of two by disposing questions: second, consideration; and, whether we take into should (e) Paragraph of the reference contained in Subsection a limitation agreement 12 of the lease was intended as the lessee should on the amount of the accounts which he his lease. return to the lessors when surrendered $99,224.91 uncollected remaining accounts my opinion, 1, 1943, should Easley, July from those turned over on considered, remain no longer they be should in justified I think we would be Easley. property course, because are barred statute taking they this time, limitations, small passage amount of six indicates during period years collected not contem- Certainly that have value. it was they no an turn over Easley in the could plated agreement worthless by using amount of accounts these equivalent required make the total of the sum up accounts to at the termination of his lease. assigned to the lessors from There in the us nothing agreement prevents is consideration the accounts eliminating present $99,224.91 are treated of no value. aggregating doing. I -think the warrants us so situation before us $124,- Therefore, I with dealing think what we are Dr. Eas- 204.83 of which were accumulated under ac- of these ley’s administration Some hospital. limitations; others may counts be barred statute collectible; general are of the same Easley received by character of accounts as those he took charge hospital. when in the case question then come the important We Easley to what were be turned over lease. have to his lessors on the termination his been impressed ingenuity avoiding with the of counsel in of the entire (e) discussion first sentence of section This Paragraph lease. reads: Lease, “At original or as expiration extended, turn, will, unto the assign Lessee Lessors, nominee, or their any bills or accounts *6 him, receivable which in an may owing be unto amount not less than the amount the hills and of accounts hereby assigned or to be as- * * *” signed unto as hereinbefore'recited. ours.) (Emphasis The amount of the bills and accounts which took Easley $114,714.85, over was as afterwards determined an ac- by counting, recognized as correct by all parties. Clearly, the underscored portion above refers quotation to, and, my in limits the amount opinion, of the accounts Easley which was to required assign. What the parties in had mind to the was owners of the in place property the same in position they were when the lease was true, July, made in 1943. To show that this is the same section provides:
“* * * in the [referring which event to same amount of the assignees of Lessee accounts] shall assume of such as the payment amounts said Lessee shall be and on account of owing labor suppliés, but the amount so assumed Lessors shall not exceed the amount out Lessee, provided paragraph (d).” fact, of As matter the accounts which were due from to various at hospital persons the time Easley sur- $7,061.43; rendered his lease was therefore, if Easley be turn required to over from the accounts accumulated dur- ing his administration of $114,- the hospital sum 714.85, the hospital only would have been required, under lease, the terms of the to pay the bills under accruing Easley’s administration to the amount $5,050.59, leav- to ing Easley the difference pay between that amount the total amount of said bills. That solution matter the would leave in exactly the same posi- tion as were in in July, save and except no question way we have of determining, were of the accounts which value comparative is the those to as- and the value of be Easley, turned over nominee, his lessors, their at end of signed That element agreement. under administration any enforce in contract difficult of the case renders the free feel itself if this Court should way, and equitable the ac- for an basis the settlement equitable to define further counts, developed have to the case would value of the an relative ascertainment took Easley to the date when which had accumulated accumulated and those which hospital over his administration. düring years six the record as pre- are this case on now If we to decide recognition that we must sented, give it to me seems (e) of Paragraph Subsection provision lessee, at which, lease, plain language, requires lessors, assign his expiration nominee, or accounts which bills him in amount not less than the bills and an *7 entered him at the time he which had been to assigned $114,714.85. 1943, the sum of on his lease in which was Court, of the with the two members My disagreement had that all of thesé accounts which who would hold had which Easley, accumulated as well as those been lease to him when he took over the assigned been I think was the that it 1943, belong plaintiffs, now to as- should Easley that require only intended to plainly as- the amount of which had been accounts to those sign than go I not further willing to him. am signed lessees, owners, in the same and present the place present over the he took Easley in which stood when position of intention I the plain think this was not been the If that had entered into lease. those who of the use for intended, was no occasion whatever there of the amount amount not less than “in an language to hereby and accounts bills it had If him, recited.” as hereinbefore assigned unto be ac- all these assign should Easley that been intended have (e) should counts, of Subsection provisions immediately above language at where the ended the point quoted began. words, other the provision would have “At simply been: Lease, of expiration original extended, will, in turn, Lessee assign unto Lessors, or their nominee, any bills or accounts receivable * * which may be unto If that language had used, been this controversy not could have arisen. The language immediately following was added it must have been added for some purpose, and pur- this pose must have been to limit the amount of the accounts which Easley was assign.-
The question may asked, be how are we make a accounts, division of as between the plaintiffs and the de- fendant, constituting the difference the total of between the accounts, accruing under the of Easley’s terms $124,204.83,' the sum $114,714.85, of of aggregate the accounts turned over Easley to' that differ- $9,489.98. ence being Someone may as to inquire accounts should be My turned over Easley. solution of this case point on this Easley would be to require turn over all of these accounts to the on the plaintiffs, condition that there to him, from collections thereof, $9,489.98. of I that sum would require assignment these accounts by Easley, plain- tiffs pay, existing on account bills hospital thereof, at the Easley’s conclusion administration $5,050.59, would, course, Easley sum which leave the burden between sum and paying balance that $7,061.43. aggregate said bills was course, agree, of separation there should accounts, it necessary is not Certainly method be court of de- employed. equity in an intricate matter this make termining character *8 a of the money suggested. decree nature I have
In the ma- presented by situation inability jority agree upon any to Court final solution matters in Court controversy, majority being of the of the Circuit opinion reverse decree reversed, Court of and the Mingo County, the same is and consideration development for further case remanded that court. by remanded.
Reversed and Judge: Haymond, Fox, Judge
I syllabus, prepared by concur in the the Circuit of Min- judgment Court reverses court for this to that go County and remands proceeding not, however, I with agree further do consideration. himby respect views in the filed with expressed opinion the de- assigned by to the of the accounts to be amount him in by fendant or the reasons stated plaintiffs, amount, he would such or the division which determining the respec- make of the of the accounts between proceeds method, by Judge tive indicated parties. Any as that Fox, judg- court in its final by the circuit adopted ment, accounts, existing at the by which the amount of reduced, limited or except termination extent from them the amount of necessary pay defendant, $5,050.59 disregards on the bills incurred unambiguous provision departs plain to the and substitutes relating pro- vision different from that entirely agreed short, Fox, I opin- as understand his Judge themselves. ion, the contract of the modify .parties, would or rewrite of a fair and conform to his idea necessary extent full giving contract between them instead equitable con- force terms of the express and effect to the clear which, consideration, themselves en- tract full tered of this case disposition into and To adopted. violate the can not for the reason that it would agree, governing interpretation sound of law principles Jur., in 12 Am. clearly are stated written contracts which Contracts, language: “Interpretation in this Section or the include its modification of an does not agreement liberty A different one. court is at creation of a new or it. to. construe an while agreement professing to revise for the par- to make a contract right Nor does it have the en- actually from that is, a different ties-—-that contract nor the rule justice them. Neither abstract tered into creation of a contract justifies construction liberal
655 for the parties which they did not make themselves or the one imposition to a contract party obligation of an not assumed. Courts cannot make for the better parties agreements than they themselves have been satisfied to make or rewrite contracts because operate harshly to one inequitably as If parties. to a con- tract adopt which provision contravenes no of principle public policy contains no element of ambiguity, the courts right, have aby no process re- interpretation, lieve one of them from disadvantageous terms he which has actually made.”
The judgment entered the able and experienced judge of the court, circuit on his based obvious desire and effort to do he equity considers between the parties, changes and rewrites the provision of the contract to an even greater extent than the Fox opinion Judge indi- cates that he would do. As the judgment of the circuit court departs from the of the con- applicable provision tract, it clearly is erroneous and should be reversed. 12 Jur., Am. Contracts, Section 228.
As stated in the opinion Judge (e) Fox paragraph of the lease contains this provision: “ (e) lease, At the or as ex- expiration original tended, will, turn, Lessors, the Lessee in assign unto the nominee, any bills or accounts receivable which him, may be unto than the owing an amount not less amount of the bills and as- hereby signed or to unto as recited. hereinbefore The writing assignment warranty shall be without as to the demands, and without recourse eith- validity er in law or in equity assignor; to the event the assignees of the shall Lessee assume payment amounts as said shall be on account owing Lessee of labor and but the amount supplies, so assumed Lessors shall not exceed the amount the Les- paid out see, provided (d).” paragraph just is free quoted subsection paragraph me, en- meaning, and its it seems to ambiguity means, tirely first, clear. the accounts lessee, defendant, at the expiration It is or their nominee. the lessors assigned shall be or accounts” mean also, “any bills clear, the words at that time. its lessee owing all the accounts 3 C. or “all”. “every” means “any” broad sense word Roedler v. Vandalia 1401. See S., 1400 and Any, J. pages Kloeblen, 77 N. 520; Newcomb v. Lines, Bus Ill. App. Trac- 724; Jersey A., S.,N. West 511,39 L. R. J. L. 74 A. *10 J. 52 N. Railway Company, Horse tion v. Camden Company v. Company Traction 333; Jersey 452, 29 A. West Eq. 163, A. J. Eq. 53 N. Railway Company, Camden Horse 339; 663, 234 P. Southern 49; Allan, App. Powell v. 70 Cal. 780, 158 200 N. C. County, Company Gaston Railway “in an immediately following E. 481. words S. ac- of the bills and the amount amount not less than unto receivable, assigned or to be hereby assigned counts the lessee shall recited.” mean that him, hereinbefore as amount not in an receivable carry bills and accounts receivable and accounts amount the bills less than the $114,714.85. is the sum of him, which was assigned to that entirety in its lease evident receivable, then as- accounts that the unpaid intended and used collected should be signed by to enable fund continuing assets in capital lessee as in- pay expenses hospital him operate to that time its operation, curred from time to termination, after at its de- existing accounts receivable lessors, of the the amount of the debts ducting lessee, then amounted and which paid by were assigned by turn” lessee $5,050.59, “in be should them or their their nominee be used the lessors or they were hospital in the assignee operation the lessee. used “in an relating to the accounts receivable
The words and ac- the amount of the bills amount not less than receivable, or assigned assigned” to be hereby counts say, and mean lessee, they mean exactly and accounts the lessee should have bills that $114,- not less than” end “in an amount at the lease of the accounts receivable 714.85, the amount which was mean, Fox Judge ap- do not They to him. assigned parently mean, considers them to that the accounts re- ceivable to assigned “equal be should be to” or “not to $114,714.85, exceed” or to” “limited the amount of the accounts assigned receivable to the lessee. They clearly place on the limit minimum amount of the re- just ceivable as clearly they do not limit maxi- mum amount should, accounts receivable if they did, as they actually of $114,714.85, exceed the amount at the termination of the lease. By acquiring and holding accounts receivable owing $223,- to him in the amount of 429.94, the lessee has satisfied the requirement accounts receivable should “in an amount not less than the amount of the bills and accounts receivable” assigned to and as the no imposed lease limitation on the amount of the accounts receivable to be by him $114,714.85 in excess of required him as- sign “any bills receivable which him”, owing unto which at the termination $223,429.94, amounted to required assign lessee them nominee, that amount to the lessors sub- ject to the provision they should “the pay- assume *11 ment such amounts as the said Lessee shall be on account of labor and the so supplies, but amount as- by sumed the Lessors shall not paid exceed the amount Lessee, out the by provided (d)”, paragraph the amount was sum of $5,050.59. The plainly expressed intention of the the the parties to lease is that all ac- counts receivable at the termination of the should lease be assigned lessors, nominee, their or and that the amount of not such accounts than the should be less amount the accounts when the lease made which was $114,714.85. was lease,
It clear to me that by is the the the (e), terms minimum paragraph intended impose amount, amount, not re- a maximum the assigned ceivable to be at termination impose requirement did not that the accounts re- to” or assigned “equal ceivable should be should not “exceed” the amount of accounts receivable as- If signed easily the lessee. had intended they they so could, would, and no doubt have in the lease that stated assigned “equal” the accounts should or receivable “not exceed” the to the lessee. Instead assigned amount “in amount less than the they used the words an not amount of to the les- the” accounts receivable see, meaning which have distinct and from contrary either of that could expressions that of the suggested have The “in an amount not less than” been used. words not an or “in equal do mean “in to” an amount amount exceed”; justifiable not to or interpretation no sound It meaning signifi- effect. give can them or and, think, too, cant I the view I have indicated sustains limiting that meaning provision, lessors, amount is “but the language assumed not exceed the amount so the Lessors shall assumed “in amount instead of words paid out Lessee.” (Em- by him. an amount not less than” the amount phrases The use of these different phasis supplied). same short paragraph subsection intended to have a differ- clearly they shows that were ent, same, or effect. meaning and not the language place upon which would meaning to each (e) gives of the paragraph of subsection effect common and usual sense of its used in its words when with well established and accords significance, contract of an written unambiguous that words rule commonly ac- usual and given ordinary, should be appear when it does meaning significance cepted such mean- are sense used in a different or unreasonable result. will an absurd ing produce 236; Farber Mutual Contracts, Jur., Section Am. Life E. L. 250, 145 N. A. Company, Insurance 250 Mass. uncertainty and the the confusion R. 806. also avoids to di- necessarily any attempt result which would receivable, or their pro- vide distribute *12 and de- collected, the plaintiffs between ceeds when me, if the views must be done which, it seems fendant fol- should be Fox in his Judge opinion by expressed way, except by no there is judgment In my lowed. unwilling who are parties, between agreement agree, by any fair or the ac- practical division of counts can If accomplished. all the accounts receiv- required lessee, able are not by as pro- lease, by subject vided to the the les- assumption by sors of the amount paid limited the lessee for labor by accounts, and some supplies, division or their pro- collected, ceeds as and when between the parties is only other alternative to dispose them. is manifest me, however, that no such division was intended by the parties lease, to the for which it fails make pro- vision, that, contract, under such accounts can not be or divided distributed between parties claiming any of them part equal on any basis, valuation or other- wise, lessee, or collected or assigned to the lessors collected, to be and their proceeds divided between them and the lessee. undesirability of any division or dis- tribution of the different accounts their or pro- ceeds, in or any fixed determinable no amount was doubt recognized who, parties to the lease by omitting from the any effect, .contract provision to that indicated clearly that they did not desire or intend division or distribution of the accounts or their proceeds should be made or undertaken in connection with the assignment of the accounts lessee. On the con- trary they intended to avoid a situation which would necessary render or any division distribution of ac- counts receivable or their proceeds among them Moreover, successors. the case as presented the circuit court, it Court, as now stands in this admittedly has not been developed extent necessary to permit any to divide attempt distribute the accounts receivable $223,429.94 which amounted to at the termination of the proceeds or their collected, when and as the lease clearly contemplates division, no such there is no justification or excuse to it attempt by further develop- ment of the case. out, pointed
As already language (e) subsection of of the lease is clear paragraph and unambiguous meaning its expressed by plain. a When written contract expresses intent of the par-
660 unambiguous language,
lies clear and. the courts will resort and give not to construction full force but will to its according effect the instrument provisions, of fraud or other which affect its grounds absence Bank enforcement terms. Kanawha its provided by Gilbert, 88, Company and v. 131 W. 46 S. ing Trust Va. 225; Brackens Company E. 2d Babcock Coal and Coke v. 676, Creek Coal Land E. 2d Company, 128 W. Va. 37 S. 519, 163 A. L. R. 871. of the court to province alter, meaning and pervert destroy the clear intent contract, in a written expressed as plainly or, by judicial instrument or other interpretation them, Bank wise, to contract for Kanawha make new Gilbert, Company 88, and v. 131 W. 46 S. ing Trust Va. 225; By v. Connelsville Company E. 2d Continental Coal 737; 44, 138 E. Company, Product Coal 104 W. Va. S. 480, Company, v. Fairmont Coal 59 W. 53 S. Va. Griffin 24, A., S., Insurance 1115;Page Office, E. 2 L. N. Sun R. v. 203, 249; Com (CCA 8th), Michigan Pipe 33 L. R. A. 74 F. Company, and Insurance pany Michigan v. Fire Marine McQuillan 277; v. 482, 1070, 92 Mich. L. R. A. 52 N. W. 20 Association, 665, 112 87 Fund Mutual Reserve Wis. Life 233, 925, A. Am. 1069, Rep. N. W. 56 L. R. 88 St. N. W. 88 986; given language and effect will be and full force are when the terms instrument used the parties Trust and Banking Kanawha unambiguous. and clear 225; Gilbert, 88, 46 S.E. 131 2d Company v. W.Va. Hanford 227, Company, 131 Insurance W. Va. Metropolitan v. Life Company, Insurance Adkins v. Aetna 777; E. 46 S. 2d Life Coke 372; Babcock Coal and 362, 43 E.S. 2d 130 W. Va. Land 128 Company, Brackens Creek Coal Company v. Sale, 871; Strother, 519, E. 2d A. L. R. 676, 163 W. Va. 37 S. Bank, County National and Clair v. McDowell Curd St. Com 818; Fairmont Coal 75, 166 S. E. 113W. Va. Griffin 1115; A., S., 2 L. R. N. 53 S. E. pany, W. Va. 106, 41 Company, River Railroad W. v. Ohio Va. Uhl 340. S. E. stated, reverse judgment
For reasons would that, under the plain hold circuit court unambiguous (e) lease, terms of subsection entitled plaintiffs assignment are the defend- ant of the full amount of $223,- the accounts receivable 429.94, that the are plaintiffs required to assume the of such amount as the defendant payment owes for labor not to exceed the amount supplies, him on indebtedness at the date of the $5,050.59. amount is shown be the sum of *14 I am authorized Judge to state that Riley concurs in forth in views set this opinion. GiveN, Judge, dissenting:
In there my view is in the contract ambiguity to be interpreted. As to the applied case, instant it appears immaterial whether the ambiguity patent is or latent. In either event trial court justified was in interpreting the contract in light of the situation of the at the time agreement made, was the circumstances them, surrounding any subsequent acts the parties, thereto, relating in throwing light their intentions upon making Co., of the contract. Uhl Railroad v. 51 W. 106, 41 Va. S. E. 340. think the situation of the parties and the material by circumstances are fully disclosed contended, course, record. is not that the terms of a written contract can be circum- by varied extraneous stances, but we should in mind the wide difference keep the varying between of the terms of an changing agree- ment, and the establishment of the of the par- intentions Corporation, ties thereto. Stewart v. Steel 100 W. Va. 331, 447; Co., 164, 130 S. E. Watson Coal 120 v. W. Va. 390; Clayton County Court, S. E. E. Va. 52 S. W. 103.
Much placed upon “any”, stress is the word used (e), Subsection that showing ambiguity no exists in of the in- provision consideration, contract under tention being “any” necessarily that must apparently mean “all”. Of course the word be made to mean truth, “all” “any” context. meaning word Evidence, usually S., context. In 32 C. J. depends c, am- Section Subsection the author states: “The biguities in those existing cases which the words are all sensible and have a settled meaning but consistently admit of two interpretations according subject matter in the contemplation of the parties have been called intermediate.” The primary meaning of the word “any”, as shown Webster’s International Dictionary, Edition, Second “one out of a indiscriminately num- ber”. We can not give the word its primary meaning here, however, for the reason that the provision requires “* * * * * * bills or accounts in an amount not less than the amount bills, hereby assigned or to be assigned unto as hereinbefore re- * * *”, cited lessor; therefore, some other of the many meanings the word “any” must be found. The contract under consideration ag- does show the gregate amount of the lessor, then nor are they therein listed. Neither do we find in record that accounts $114,714.85, amount of or any other amount, were ever assigned appellee. Assuming that all of the accounts making up sum were as- signed to appellee, and that a substantial those portion of accounts was satisfied payment appellee, as indi- *15 cated the statement of accounts exhibited with the bill, from whence may select appellee aggre- $114,714.85? gating the created, From the accounts first or accounts, from the newer believe, or can we as has suggested, been that it was intended that return appellee all of the uncollected portion of the making up $114,714.85, the plus all unpaid accounts during created the six year of period operations under the whether $124,204.83, amount be or several million dollars? The out, believe, I pointed uncertainties clearly the show contract to be ambiguous. “any” word must be applied to some one of the indicated, situations but which one?
If any further demonstration of rendering uncertainties ambiguous contract were necessary, simply would refer to the fact that not more than two members this Court can arrive at the same conclusion with refer- ence thereto. I am not unmindful of rule sometimes in of a common word to the effect that the use applied, ambiguous. a a does not make contract peculiar sense Estate, 342; Re Kraner See 206 N. Y. Milliette's S. Halsey, more, Cal. P. 11371 We have case, instant than the “any”. use word What subject $114,204.83, matter “any”? Is it $124,204.83, $223,429.74, $99,224.91, or the some plus part of one or the S., other of such In 3 Am sums. C. J. author, biguity, speaking ambiguities, says latent that: “The either, term has been said on imply one hand, a concealment of the real or intention meaning of the writer which does not appear on the face of used, words until these brought words are in contact with collateral facts or until the shown, or, facts are on the other hand, a clear expression of the inten party’s tion, and the intention, existence of a doubt not as and, but as to the object to which the intention applies, case, the latter necessity extrinsic evidence identify object. The term accordingly has de been fined an ambiguity evidence, raised or that arises the proof aliunde, from of facts one not upon which arises instrument, themselves, words as looked at in but upon those object words when or applied subject describe, which they or one which does not ap on the pear face the language used or the instrument considered, being or when the words apply equally or two more different subjects things, as where language employed is clear intelligible suggests single meaning, but some extrinsic fact evidence aliunde, creates a necessity for or a choice interpretation among two or more possible meanings. The term has been held to be an equivalent and has ‘equivocation,’ ‘error,’ ‘mistake,’ distinguished been and ‘patent ambiguity’.” The contract being ambiguous, court would justified considering equities or inequities would result to the parties interpretation under *16 contract, in an effort to arrive at the intention of the parties. “Where con possible, equitable reasonable and contract; struction will be harsh un given and ignored changed by reasonable terms not be 664
court
contrary
meaning
the clear
of the language used
and the
S., Contracts,
intent
the parties.”
17 C. J.
Section
See Engineering
County Court,
Co.
319.
92
368,
W.
115
462;
Va.
S. E.
Seward
Co.,
v. Hardware
161
Va.
“Unless intention parties contract is manifest language employed, subject-matter, and surrounding cir cumstances, that construction given should be which is consistent with the of the right Telephone case.” Co. v. Co., Telephone Va. S. E. The trial court 389. merely these applied principles in effort to its determine the true meaning and intent the language contained (e) Subsection Section of the contract. In so doing, that court did not necessarily forget the principles relating contracts, interpretation disposed the matter entirely upon equitable So view principles. ing the I can question, say interpretation his wrong. At least not more than two of this members Court agree can that he erred as to any of law. principle having parties addition to before in being permitted consider the situation of the parties them, surrounding equities circumstances resultant inequities would arise possibly interpreta under contract, indicated, tion of he as above could look to each and all of the of the From provisions contract. these he find that contracted provisions would the parties with reference to furniture property and other personal with reference to and other assess hospital, taxes ments, building, reference to repairs hospital with refer building, with reference to alterations of that with insurance, inventories, ence all with reference to the intention certainly which he would discover that that, of the as to such matters the termi parties was nearly in as placed nation beginning same were at the position lease. this determining Could not be considered in intentions with reference accounts receivable the accounts' The result reached payable? by the trial court as to receivable and the accounts pay- *17 able was the same practical effect as the results reached in the contract parties to such other as matters.
I do not think that we should make a fetish of the word “any” rely on it as solving problem presented by the. this record. Nor should give we literal meaning to a group ambiguous words which would in in- result equitable or unconscionable disposition this contro- I versy. think it is better to arrive at a fair and equitable result upon the theory that the parties to the here considered did intend to take from each other any right or rights which in all belong fairness to the other. I think that the Circuit Court of Mingo County given has effect to the intention of the nearly as could be done, in the circumstances disclosed by this record.
It will be that noticed the syllabus prepared by Judge Fox, and concurred in by Judges Haymond and Riley, for remands case “consideration” only. Therefore, I presume can there be no further development of the case as it relates to interpretation of the contract. “Considera- tion” alone may given the trial byit court. Not more than two members of this Court are able to agree upon proposition law or fact which should con- sidered again trial court. I have been unable find any precedent or for reason reversal of the decree the trial court in such circumstances. The record shows that the trial court fully carefully considered every phase matter involved. His were ex- clearly views in a pressed written opinion. judgment entered is in accord with those views. Inasmuch as not more than two say members this Court can that the trial court law, erred to any I affirm that principle judg- would ment. This Court not expect should the trial court mystic discover some for solving formula problem we are unable to solve. indicated,
Being views respectfully dissent. I am authorized to say Judge Lovins concurs in views herein. expressed