2 Ark. 485 | Ark. | 1840
delivered the opinion of the court:
The instrument sued on contains an assignment of a contract coupled with a warranty. It is perfectly clear to our minds that the assignments passed no legal interest in the contract attempted to be assigned, according to our statute of assignments, then in force, to the plaintiff, in such manner as to enable him to maintain the action in his own name. Steele and McCampbelPs Dig. p. 74, sec. 1. But the assignment unquestionably passes the equity in the contract.
It is contended in behalf, of the defendant in error that the declaration is defective, because it wholly fails to show that the plaintiff sued in his representative character or capacity. The doctrine upon this subject is correctly laid down in Brown vs. Flicks, and in Lyon vs. Evans, and others, 1 Ark. 341 aud 365. And if the declaration falls within the principles established in these cases, it is certainly defective on demurrer. If a party sues an executor, there must be a substantive averment in the pleadings, showing that he sued in his representative capacity, and nothing by intendment shall be taken to supply the want of such an allegation. But it is immaterial in what part of the declaration or of the pleadings that averment occurs.
The declaration now under consideration expressly contains such an averment, and unquestionably shows that the plaintiff sued in his representative, and not in his individual capacity, for it alleges that Byrd, Belding and Shelton failed to pay the intestate in his life-time for the rations delivered by him, nor have they, as yet, paid the same or any part thereof to the said plaintiff as administrator as aforesaid. The enquiry then is, what is the character and nature of the agreement sued on? Is it a covenant or collateral undertaking? No precise or technical words are necessary to create a covenant, but any words which show the intention of the parties will be sufficient for that purpose. Covenant is agreement of two or more persons by deed in writing, sealed and delivered, whereby either one or the other of them doth promise that something is done already, or shall be done afterwards. The true inquiry always is, what are the intentions of the parties? In construing such agreements, it must be considered in reference to the context, and performed according to the spirit and intention of the parties. If there be any ambiguity in its terms, such construction must be given as will militate most strongly against the covenantor. By applying these rules to the instrument sued on, they will readily determine its true character. Gaster vs. Ashsey, 1 Ark. 335, and authorities there cited.
The latter part of the agreement purports to assign the contract the defendant held upon Byrd, Belding and Shelton to Ludovicus Belding; but this clause, although wholly inoperative as an assignment at law, certainly does not vitiate or destroy the component parts of the agreement. The first clause certifies that the defendant’s contract to supply 22,000 rations for Byrd, Belding and Shelton, has been complied with on his part, and that they are indebted to him for the amount of the supplies at the price agreed upon, which was to be ascertained by reference to their contract with the government. This is certainly a covenant; for it certifies that the covenantor had performed his part of the agreement with Byrd, Belding and Shelton, by delivering the 22,000 rations of supplies for the emigrating Choctaw Indians, and that they stood indebted to him for the amount of rations so delivered. It is true that the amount is not set out in the agreement, but that is capable of being ascertained by reference to Byrd, Belding and Shelton’s contract with the government, which fixes the price which is to be paid for each ration. The word certify, which is used in the agreement, is certainly equivalent in its signification and meaning to the word promise, agree or declare, and these latter words are as capable of covenant, as the words grant, warrant or guarantee. Does the term certify, as used in the instrument, correspond with that covenant? That it does, is perfectly manifest, from the fact that the instrument is put under seal, and that it was the covenantor’s intention to make such an agreement, and so it was understood by the covenantee as well as himself. For upon this certification or warranty, he paid the covenantor the sum of $1750, and to it he looked for indemnity in full confidence that its stipulations would be complied with. The last clause in the instrument, after reciting the assignment, contains this peculiar and significant expression, “ that the said Byrd, Belding and Shelton will pay, on sight, to said Belding, or order, the amount of said rations according to this contract.” What, then, is the meaning of this language? It is a covenant that Byrd, Belding and Shelton will pay, at sight, the amount of rations delivered according to their contract. And does the covenantor certify that fact to the covenantee? This latter part of the sentence has no connection with the assignment although it immediately follows it. For the sense of the agreement would be unintelligible upon any such interpretation. To assign that Byrd, Belding and Shelton would pay at sight, is an unmeaning and useless expression. But to certify that they would do so is both intelligible and rational.
The instrument is under seal, and that gives to it such a character of a covenant as carries with it a good or valuable consideration, and it must be construed and taken most strongly against him who executed it. This being the case, the covenantor certified to Ludovicus Belding, Byrd, Belding and Shelton’s indebtedness to him, and that they would pay said Belding on sight. There are three distinct and separate covenants in the agreement, and upon each of these covenants the covenantor is bound to make his stipulation good: First, that he had performed his part of the agreement; second, that Byrd, Belding and Shelton were due him for the rations he had delivered; and, thirdly, that they would pay the amount then due to Ludovicus Belding at sight. All these three things he covenanted were true, and he cannot now be permitted to exonerate himself from any of them, provided the plaintiff has properly charged him in his declaration.
It is said, in behalf of the defendant, that the covenant was not binding upon the party making of it, for it was a guaranty to Ludovicus Belding, who constituted one of the firm of Byrd, Belding and Shelton, and therefore his making the agreement operated as a payment by one partner for the benefit of the firm, and consequently no action could be maintained upon such a contract. It is wholly impossible for this court, judicially, to know any such thing. The defendant has not thought proper to put such fact in issue. And the record no where shows that Ludovicus Belding was one of the firm of Byrd, Belding and Shelton.
The declaration is very inaccurately drawn, and sets out no substantial breach in such manner as will render the defendant liable, it contains no averment that the defendant had not performed his part of the agreement with Byrd, Belding and Shelton, neither does it allege that they were not indebted to him by reason of non-performance of his contract. It states that the agreement sued on was presented to Byrd, Belding and Shelton, and they refused to pay according to its true meaning and effect, and upon this allegation it attempts to charge the liability of the defendant. The allegation is wholly insufficient for that purpose, for it fails to state at what time the covenant was presented, or by whom presented; and nothing can be presumed by way of intendment that will cure the defect. Whether it was presented before or after the assignment, or by whom presented, it is impossible to determine. There is no specific allegation that they failed to pay at sight. The averment relied on is therefore insufficient to raise any liability. There being no sufficient breaches assigned, of course the court below rightly sustained the demurrer. The judgment of the circuit court must therefore be affirmed with costs.
