100 Mo. App. 116 | Mo. Ct. App. | 1903
The execution of the two agreements set out in the petition was admitted. It appears from the evidence that after O ’Reilly and Lancaster had been paid the $25,000, which they had paid into the corporation, with ten per cent interest thereon, and after Barnett had transferred twenty-five shares of his stock to O’Reilly, as per agreement of August 18, 1866, he
Lancaster testified that he objected to-and protested against the payment of any part of the interest to Yeatman after 1874, when he had been paid the par value of his stock with interest and when Barnett became entitled to receive dividends on his own shares of stock, and that he then claimed that his obligation to contribute to the payment of interest terminated in 1874, when Barnett became entitled to receive dividends on his own stock.
The right of plaintiff to recover, if any he.has, must be found in the contract of August 18, 1866. The contract has no latent ambiguities and can not, therefore, be- helped by the parol evidence in the case. In respect to the length of time the Yeatman interest should
The contention of plaintiff is that under the contract, O’Reilly, Barnett and Lancaster pooled their stock for the life of the lease and agreed that the Yeatman interest should be paid out of the earnings of the pooled stock until all interest to become due was discharged. The defendant contends that the pool ended at the point of time when he and O’Reilly were paid, out of the net earnings of the pooled stock, the par value of their stock with interest. It is claimed by plaintiff that the parties themselves, by continuing the pool for three years after Barnett became entitled to dividends on his own stock, construed the contract as continuing tlie pool to the end of the lease. In the light of the evidence of Lancaster, that he objected to and protested against contributing to the Yeatman interest after Barnett became entitled to dividends on his own stock,.we do not think it can be safely said that he at any time construed the contract as contended for by plaintiff or agreed to that construction. The coiitract must therefore be construed by its terms. These being of doubtful meaning we must ascertain what was in the minds of the parties at the time the contract was entered into with reference to the subject-matter under consideration, and the purposes to be accomplished by the contract and from these ascertain the scope and meaning of the agreement as written.
The situation was, O’Reilly, Barnett and Lancaster had subscribed $45,000 to the corporation to be used in the erection of a building to be leased to tenants. Barnett had subscribed for two hundred shares of stock in the corporation and had borrowed $20,000 of Yeatman to pay for it, agreeing to pay eight per cent interest per annum on the loan for twenty years in discharge of the loan and had pledged to Yeatman his two hun
It will be seen by reading the contract that Lancaster did not make himself a party to the prior agreement between Yeatman, Barnett and O’Reilly, nor did he become unconditionally bound to Barnett and 0 ’Reilly, or to Yeatman,' to pay any part of the interest. He agreed to pool his stock with that of 0 ’Reilly and Barnett and that the payment of the Yeatman interest should be a first charge on the earnings of the pooled stock.
When, if at all, during the life of the corporation did this, agreement terminate, is the question in controversy. It seems to us that it was to run and be in force “until” the amounts paid by O’Reilly and Lancaster into the corporation with ten per cent interest thereon should be earned in net dividends on the four hundred and fifty shares of pooled stock and be paid to them. After the attainment of this result, Barnett was to transfer to 0 ’Reilly twenty-five shares of his stock and the profits (dividends) were to be divided pro rata between the three of them in proportion to the amount of stock held by each. When this changed condition was brought about the shares held by 0 ’Reilly and Lancaster had paid for themselves with ten per cent interest. The shares held by Barnett were still burdened with, the payment of the Yeatman interest hypothecated as security therefor.
It is contended by respondent that the last clause of the contract, to-wit: “And when the said sums so paid up by said 0 ’Reilly and Lancaster shall have been fully paid back, the said Barnett, as trustee of Elizabeth Barnett, shall transfer to said 0 ’Reilly twenty-five shares of said stock, so as to make equal the amount of stock owned by said Barnett, trustee, and said O’Reilly, after which any dividend declared upon said stock shall
The stipulation that after the transfer of twenty-five shares of stock to 0 ’Reilly, the dividends declared should be received by O’Reilly, Barnett and Lancaster pro rata in proportion to the amount of stock held by them without mentioning the Yeatman interest, seems to us to exclude the idea that the pool of four hundred and fifty shares should longer continue and that this was written into the contract to show that Bar
The contract should be construed as a whole and not by piecemeal, and if one part or clause has reference to another the two should be construed together. But the separate and distinct clauses providing for separate and distinct things can be considered together, only in so far as the one throws light upon the other, and we are required in the construction of contracts to give words their ordinary meaning, when they have one. The word “until” is a word of limitation used ordinarily to restrict what immediately precedes it to what immediately follows it. Its office is to point out some point ’of time or the happening bf some event when what precedes it shall cease to exist or have any further force or effect. In the connection in which it is used in the contract it can have no other meaning than that the pool contract should continue up to the time when 0 ’Reilly and Lancaster received from the dividends on the pooled stock the amounts respectively paid into the corporation by them with ten per cent interest thereon. It appoints a time when the pool contract shall end.
“In open prospect nothing bounds our eye,
Until the earth seems joined unto the sky.”
The argument, that the word “until” .joins the last to the preceding paragraph of the contract, seems to us as delusive as is the optical illusion that the earth joins the sky at the extreme point of unobstructed vision. The last clause does not serve to explain the first
Another obstacle in the way of plaintiff’s construction of the contract is, that the interest due to Yeatman was Barnett’s debt, not .Lancaster’s. "Why should Lancaster-continue to contribute to the payment of Barnett’s debt after the inducement to do so had been withdrawn by Barnett’s stepping in and participating in the dividends or profits? For it must be kept in mind that the only consideration that could have moved Lancaster to enter into the agreement of August 18, 1866, was that Barnett agreed to forego participation in the dividends on the four hundred and fifty shares of pooled stock on condition that O’Reilly and Lancaster would agree to treat the Yeatman interest as a first charge on said dividends. It seems to us that when the consideration for the contract failed, that Lancaster’s obligation under the contract ceased.
After providing that the $400 of interest becoming due quarterly on the Yeatman note should be included as an expense of the corporation, the contract provides as follows: “ There shall be first refunded and paid to the said O’Reilly and Lancaster, pro rata on the respective amounts of $15,000 advanced by O ’Reilly, and $10,000 advanced by Lancaster, until both these amounts shall be paid in full with interest at the rate of ten per cent per annum.” The right of O’Reilly and Lancaster to receive all the dividends after paying expenses, including interest to Yeatman, is made to depend upon the application of dividends to the payment of interest on Barnett’s note to Yeatman.. These are interdependent stipulations, both of which were to run together and continue until O’Reilly and Lancaster should"receive the respective amounts paid into the corporation by them with interest. The preposition “until” is a restrictive word, a word of limitation (State ex rel. v. Perkins, 139 Mo. l. c. 115), and means in this contract that the payment of the Ypatman interest out of the
The purposes of the bargain between Barnett, O’Reilly and Lancaster, so far as Lancaster was interested or concerned, were accomplished when he received his $10,000 with the agreed interest, when Barnett became entitled to and did receive the dividends on his own stock.
The construction of the contract contended for by the respondent was given it by Judge Bakewell, a former judge of this court, by the referee and by the judge of the circuit court. It was ably presented on the first hearing by the respondent’s counsel and we gave the case careful consideration before preparing our first opinion and hesitated long before committing ourselves to the result then reached for the reason the views we entertained were opposed to the views of the three learned jurists above mentioned. When the motion for rehearing was filed we readily sustained it and granted a rehearing, not because we had changed our views, but for fear we might be in error. The case has been again very ably argued by counsel for both parties. With these arguments fresh in our minds we have again gone over the case and given it the best consideration we are capable of, with the single object of arriving at a correct interpretation of the contract. After doing so we find it impossible to change our views as expressed in our former opinion and therefore reverse the judgment.