Sullivan v. Louisville & Nashville Railroad

138 Ala. 650 | Ala. | 1903

TYSON, J.

This suit was brought by appellant to recover damages for alleged breaches by defendant of a contract made by appellee with D. F. Sullivan, deceased, granting to D. F. Sullivan and his assigns preferential rates in the shipment of timber and lumber over the Pensacola Railroad, the Selma & Gulf Railroad, and the Mobile & Montgomery Railroad. The breaches assigned embrace matters occurring both before and after the death of D. F. Sullivan.

Plaintiff bases his right of action as owner, under the will of D. F. SulliAran of his lumber and timber business, of the contract with defendant, and of the claims of D. F. Sullivan against the defendant, for breaches of said contract prior to his death.

It is further alleged- in the second and fourth counts of the complaint as amended that “a court of the State of Florida having full jurisdiction of the subject matter of the estate of said I). F. Sullivan and of the contract of February 27, 1880, and the other contract described in this complaint, and the rights thereunder, and having before it and having properly obtained jurisdiction of the persons, all the heirs at law, executors, devisees and legatees of said D. F. Sullivan, and to which said cause the said M. H. Sullivan, the plaintiff herein, was a proper party, a decree was duly and regularly rendered on to-wit, the 6th day of November, 1890, wherein and whereby certain assets of said estate Avhich include all the contracts and rights of action, in Avhich said estate had an interest, described in this complaint, Avere assigned and set apart to the said M. II. Sulli van, plaintiff herein, which said decree remains unappealed from and unrea ersed and in full force and effect.”

The defendant moved to strike from the several counts so much thereof as related to breaches occurring subsequent to the death of 1). F. Sullivan on June 14th, 188-1, which motion. Avas granted. The correctness of this ruling of the court depends upon Avhether plaintiff by virtue of the Avill of D. F. SulliAran and the decree of the court of Florida above referred to, either or both, comes Avithin the meaning of the word “assigns” as defined in the contract sued on. The contract undertakes to define the Avord assigns by stating “that the word assigns used in connection with the party of the first part (Sullivan) is hereby limited to his legal representatives in case of his death, to his successors in the timber and lumber business in case of his retirement, and to any mill that he may build or purchase in case of his selling his interest •therein.”

It is averred in the coinplaint that the term “legal representatives” was used in the contract with the intention upon the part of the defendant and I). F. Sullivan that said contract should be capable of being bequeathed by said Sullivan under his will or being passed to his heirs at law or distributees after his death.

The written contract must be considered the sole exposition of the intention of the parties, and special mean ■ ing can hot be given to terms used by proof of unexpressed intention. — Guilmartin v. Wood, 76 Ala. 204; Hughes v. Wilkinson, 35 Ala. 663.

When a rvriting contains a term which it is impo«si • hie for the court to construe, without the aid of evidence aliunde, it is proper to resort to evidence for that, purpose, but when a writing is complete in itself, it is the duty of the court to construe it without the aid of extrinsic proof. — Gunn v. Clendenin, 68 Ala. 294. As was said upon the former appeal in this case, (128 Ala. 97), the term “legal representatives” used in the contract in limiting the meaning of the word assigns, has a well defined legal meaning, being executors or administrators. Bouv. Law Dic. 170; Woener on the Law of Administration, 906, bottom p. 990; 18 Am. & Eng. Ency. Law (2d ed.), 813; Wason v. Colburn, 99 Mass. 342; Cox v. Curwen, 118 Mass. 198; Halsey v. Patterson, 37 N. J. Eq. 445; Tarrant v. Backus, 63 Conn. 277; Briggs v. Walker, 171 U. S. 471; In re Wyndham, L. R. 1 Eq. 290; In re Crawford, 2 Drewey’s Rep. 230; Smith v. Barneby, 2 Collyer, 728; Alger v. Parrott, 3 Eq. Cases, 328; In re Best, 18 Eq. Cases 686; Price v. Strange, Madd. & Gel. 159; Pillow v. Hardeman, 3 Humph. 538, 541; Ewing v. Shannahan, 113 Mo. 194, 195; Matthews v. Am. Ins. Co., 154 N. Y. 449, 456. This primary meaning ■ would, of course, yield to a context which clearly indicated a different meaning and for this reason the term has in many cases been given a broader or another sense. But in the absence of any thing in the contract to indicate that a term was intended to have other than its primary or ordinary meaning, it would be a pure assumption to construe it in another sense. The contract here is complete, and there is nothing therein to show that any other than the primary meaning of the term “legal representatives” was intended. Oases last cited, supra. The plaintiff not coming within the meaning of the word “assigns,” as limited in the contract, shows no right to sue thereon for niatters occurring subsequent to the death of 1). F. Suliivan.

Eliminating the portion of the several counts of the complaint which seek to recover for matters transpiring after the death of 13. F. Sullivan, there remains a claim asserted in said counts for payments made by him, in excess of the contract rates, which devolved upon his executors. — Hayes v. Hayes, 45 N. J. Eq. 461.

The effect of the decree of the court of Florida was, at most, to transfer the beneficial ownership of the claim to such overcharge to plaintiff. It is contended that this beneficial ownership entitles plaintiff to maintain this suit as for money had and received. It is true that an action for money had and received will lie for money paid in excess of legal or contract rates when payment is involuntary and that such an action may be maintained, by the distributees of an estate when there is no necessity for administration and when there has been a complete administration and final settlement. — Wooten c. Steele, +98 Ala. 252.

But this action here is on the contract. It is for damages for breach of an express contract to render services for a stipulated consideration. — Ex parte Sullivan, 106 Ala. 80.

It is not upon a promise implied by law to refund such, overcharges. The several counts of the complaint cannot be considered, as an action upon an implied promise to pay or an action for breach of a covenant under seal as the pleader may elect. It must be one or the other for all purposes, and this must be determined from the form of the complaint. The form of the complaint, as we have said, is upon the contract itself for breaches of its provisions which are therein assigned. It cannot be doubted that a plea of the statute of limitations of six years would not be good to tbe counts as framed upon a sealed instrument and yet such. i>lea would be good if tbe suit was merely for money bad and received. As this express contract was not for tbe payment of money, but was for tbe performance of services, it is not within section 28 of the Code, authorizing actions in the name of tbe party really interested. In consequence, plaintiff was not authorized to maintain tbe suit in bis name for said sums paid by D. F. Sullivan, and tbe demurrers to tbe several counts of tbe complaint were properly sustained.

This conclusion renders it unnecessary to consider tbe right of plaintiff to amend by making the suit in tbe name of all tbe distributees for bis benefit, for tbe reason that tbe other distributees could also only have a beneficial interest in such claim and did not have a legal title i hereto.

Tbe judgment is affirmed.