53 Ala. 549 | Ala. | 1875
This suit was commenced by the appellee, on an instrument in writing, signed by the intestate of the appellant, for the payment of money to the appellee, in these words :
“$330 00. On or before the first day of January, eighteen hundred and sixty-four, 1864, provided peace is by that time declared between the old United States and the Confederate States, I promise to R. J. Manning, or order, three hundred and thirty dollars, for value received, with interest from the 27th day of November, 1862; but in no event is this Jiote due or payable until peace is concluded and declared as above written. Central Mills, this, the 4th day of December, 1862.
(Signed) “Jno. G. LOVETT.”
Several pleas were interposed by appellant, two of which only are material, as the case is here presented; the general issue, and that suit Avas brought before the money was payable. Referring to the summons, it appears to have been issued on the 15th February, 1866. No evidence Avas given on the trial, except the instrument in Avriting. The court charged the jury, the plaintiff Avas entitled to recover; and the defendant reserved an exception, on Avhieh this appeal is taken.
The argument of the appellant’s counsel assails the correctness of the charge, on two grounds, viz : first, that the
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The intention of the parties is the thing to be ascertained, in the construction of contracts; and in ascertaining it, regard must be paid to the nature and character of the contract. This instrument, under the statute (B. C. §2681), imports that it was made on a sufficient consideration, a valuable consideration, of detriment to the promisee, or of benefit to the prommissor. If its words are of doubtful meaning, they must be taken most strongly against the promissor. 1 Brick. Dig. 386, § 162. So, if it is susceptible of two constructions, that construction which will give it operation, rather than that which will deprive it of all force, must be adopted. Ib. § 163. And if it is capable of two meanings, the one ageeable to, and the other against law, the former must be followed. Ib. § 164.
Looking to the nature of the instrument, its terms, and the fact that it imports a valuable consideration, the intention of the parties must have been that it should be payable
Admitting this construction, the correctness of the charge is denied, because, it is said, when the suit was commenced, peace had not been declared; that it was not declared until President Johnson’s proclamation, of April 2d, 1866, or of August 20th, 1866; the first declaring that armed resistance had ceased everywhere, except in the state of Texas; and the latter that it had ceased there also, and that peace prevailed throughout the whole Union. It may be, as is suggested in argument, that a state of peace, or of war, is not a pure question of law, lying within the province of judicial decision ; but that the courts adopt and follow the decisions of the political departments of the government. Yet, we think, in the decision of a question like that now presented, the recent war may be regarded as having terminated, when, if a-different question, involving different considerations, were presented, it could not be so regarded. U. S. v. Anderson, 9 Wall. 68. It is the public history of the State,
The suit was not, therefore, premature; the day of payment had passed when it was commenced; and there is no