First National Bank v. Savannah, Florida & Western Railway Co., 36 Fla. 183

First National Bank v. Savannah, Florida & Western Railway Co.

36 Fla. 183 | Fla. | 1895

Mabry, C. J.:

Counsel for appellant say in their brief that but two questions arise on the assignment of error made: the first being whether the written agreement, found in the statement, imports a promise to pay interest from December 19th, 1889, or only from the date upon which the bank paid the checks; and the second is, whether a national bank can recover the consideration for an executed contract or guaranty. The case is presented here by both parties as if the bill of particulars, including the written agreement, was incorporated into and made a part of each count of the declaration. The record shows that the declaration was so presented and considered in the Circuit Court. The order sustaining the demurrer recites that the parties waived all questions as to misjoinder of parties defendant, and agreed *192that the bill of particulars should be treated as part of the declaration as ranch as if set out in full therein..

The cause of action, or copy thereof, required by the statute to be 'filed with the declaration is to apprise-the defendant of the nature and extent of the demand against him, in order that he may plead with greater certainty, and ordinarily such cause of action constitutes no part of the declaration. Waterman vs. Mattair, 5 Fla. 211; Robinson vs. Dibble, 17 Fla. 457; Wilson vs. Frienburg, 22 Fla. 114; Columbia County vs. Branch, 31 Fla. 62, 12 South. Rep. 650. Each-count in the declaration before us refers to the bill of particulars as being made a part thereof, and assuming that a bill of particulars can in the way indicated become incorporated as a part of the declaration, and as it was presented to and considered by the Circuit Court in that light, we will so consider it here, though not-committing ourselves to the approval of such practice.

The plaintiff sued only for interest, and the interest claimed under each count of the declaration is on sums of money paid by plaintiff to the viaduct committee on account of defendants from the date of the agreement, conceded to be the basis of the cause of action against them, until the times of repayment of the money to plaintiff. It is alleged that plaintiff paid the sum of $16,000, being $8,000 for each of the defendants, in various sums on the dates mentioned in the bill of particulars, and although defendants have-reimbursed plaintiff for the principal of the money so paid, they have refused to pay the interest upon the sums so advanced from the date of the agreement to* dates of reimbursement. It is not alleged that any time elapsed after payment by plaintiff of the sums mentioned in the bill of particulars before the refunding of the same by defendants, so that the demand of. *193the plaintiff, as shown by the declaration is for inter-'* est on the sums paid out by it from the date of the written agreement up to the times of payment. If defendants are not liable for such interest under the terms of the written agreement, then no cause of action is disclosed by the declaration, considering the agreement-as incorporated therein as the only basis of liability against defendants. Counsel for the bank concede-this to be the case, and hence the principal difference between the parties is, whether the agreement imports-a promise to pay interest from its date, in December, 1889, or only from the dates upon which the bank paid the checks of the viaduct committee. Our conclusion is, that the written agreement mentioned contemplated payment by the defendants to the plaintiff of such sums of money as the latter might pay for the former, not exceeding eight thousand dollars for each, in honoring the checks of the committee for the construction of the viaduct, and interest on the amounts so paid, at the rate of six per cent, per annum, from dates of payment until refunded, which was to be from two to ten days after such payments. It may be conceded that in the first clause in the agreement containing a promise to pay, on demand, the sum of $16,000, with interest at six^e?’ eent. per annum, stood alone, it should be construed to be a promise to pay the sum mentioned, with interest from the date of the agreement. But there are other clauses in the agreement that indicate, it seems to us, a purpose to pay interest on the amounts paid out by plaintiff only from the times of payment until the money was refunded. This-purpose is shown in the portion of the agreement stating that the promise to pay as above mentioned was in. order to secure plaintiff for the stated sums which it *194might pay for defendants in honoring the checks of the viaduct committee, and the expressed understanding that plaintiff should be reimbursed in from two to ten days after such payments by it. It is the duty of the court to give effect to every clause of a written instrument, if it can be done consistently with the intention of the parties, and language should not be construed as superfluous merely because an implication of law arising from a previous clause would indicate that it was unnecessary. The written agreement is not so clearly expressed as it might have been, but considing all of its clauses, as we should do, and looking to the instrument alone, it appears that the defendant-companies were to contribute money for the construction of a viaduct on Commercial street in Jacksonville, and arranged with the plaintiff bank to honor checks of the construction committee of the viaduct to the extent of $16,000, being $8,000 for each defendant. It is clearly expressed in the last clause of the agreement that the money to be paid out in honoring said checks was to be refunded to the bank in from two to ten days after the payments, and the promise contained in the first clause to pay, on demand, $16,000 with interest at the rate of six per cent, per annum, is expressed to be to secure the bank for the amounts which it might pay out in honoring said checks. The agreement itself does not show any contractual obligation on the part of the bank with the city of Jacksonville to pay money for defendants, but it is an agreement solely between the bank and defendants whereby the latter promises to pay to the former siich sums, with interest at six per cent, per annum, not to exceed $16,000, as it might pay for defendants in honoring the checks of the viaduct committee. If, for any cause, the bank had failed to honor any such checks.it could *195have had no right, under the agreement, to demand any sums whatever from defendants. The agreement as an entirety fails to show, in our judgment, a promise to pay $16,000 and interest thereon, independent of the payment by the bank of such sum to the building committee on account of defendants, and it was only by making such payment that the bank had the right to demand reimbursement at the hands of the defendants. If this construction of the agreement be correct, and we think it so, the obligation to pay interest arises only after payment of money on account of the defendants to the viaduct committee. This view of the meaning of the contract is strengthened very much by the last clause expressing the understanding of the parties that upon the payment of the checks the bank was to be reimbursed in from two to ten days after such payments. The presumption, contended for by counsel for appellant, that the bank would not have agreed to honor the checks of the viaduct committee for.the compensation fixed in the shape of the interest provided for, can not control the terms of the contract itself, and besides such presumption, if it could have any force here, may somewhat be overcome by the counter presumption, as insisted on by counsel for appellees, that defendants would not have agreed to pay interest on such sum of money before it was paid out on their joint account. But according to the terms of the entire instrument itself, we agree with the construction placed on it by the Circuit Court, that it does not import a promise to pay interest oil the sums of money paid out from the date of the contract, but only from the times of payment.

This being the case, no cause of action is shown against defendants by the declaration as presented *196here, and the judgment appealed from should, therefore, be affirmed. Order to be entered accordingly.