12 Ind. App. 258 | Ind. Ct. App. | 1895
It is substantially alleged in the complaint, among other things, that in 1889 Walter L. Sullivan and John P. Wood were doing business as partners at Mount Vernon, Indiana, in the merchandising business under the name and style of Sullivan & Wood; that said John P. Wood resided at the city of Evansville, and that
The agreement on which the action is founded reads as follows :
“This agreement, made this 3d day of June, 1889, by and between the firm of Sullivan & Wood, a firm composed of Walter L. Sullivan and John P. Wood and engaged in the dry goods business at Mt. Vernon, Ind., and J. F. Lindley and Hiram M. Lindley and J. F. Lindley, Jr., and engaged in the dry goods business at Evansville, witnesseth, that, whereas, a suit was brought on the — day of May, 1889, by John P. Wood against said Walter L. Sullivan in the Posey Circuit Court, for an accounting and the appointment of a receiver; and, whereas, an inventory has been taken of the stock of Sullivan & Wood, which aggregates in value the sum of six thousand one hundred and twenty-four dollars and one and one-half cents ($6,124.0114) and the fixtures at four hundred and twenty dollars ($420), making in all the sum of six thousand five hundred and forty-four dollars and one and one-half cents ($6,544.0114).
“A copy of said inventory is filed herewith, marked ‘Exhibit A.’ A list, also, of the accounts and notes due said firm is also filed herewith, and made a part hereof, aggregating the sum of one thousand seven hundred and forty-eight dollars and sixteen cents ($1,748.16), and made part hereof and marked ‘Exhibit B.’
“Said stock, fixtures, accounts and notes, aggregating in all the sum of eight thousand two hundred and ninety-two dollars, and seventeen cents ($8,292.17); whereas, the receiver in charge of said, stock of accounts has collected apd, has on hand, in cash, one hundred and
“And the said Sullivan is indebted to the firm of J. F. Lindley & Bros, in the sum of one thousand three hundred and eighty-six dollars and forty cents ($1,386.40).
“Now, therefore, the said firm of Sullivan & Wood and said Walter L. Sullivan sells, transfers and conveys all stock of goods, accounts, fixtures and notes herein and before specified as is set out in exhibits ‘A’ and ‘B.’
“In consideration of which, the said J-. F. Lindley & Bro. agree and bind themselves to pay all the debts of the firm of Sullivan & Wood, as set forth in exhibit ‘C,’ aggregating the sum of four thousand two hundred and thirty-five dollars and thirty-one cents ($4,235.31), together with interest on the same in full.
“And they also agree and bind themselves to pay and save harmless the said John P. Wood for any liability he may incur or be responsible for by reason of having been a member of the firm of Sullivan & Wood.
“After the payment of the said debts of the firm of Sullivan & Wood, and they shall have paid to themselves seven hundred and eighty-six dollars and forty cents ($786.40), with the interest on the same, of the individual account owing them by said Walter L. Sullivan, said J. F. Lindley & Bro. shall have the option to resell and convey to said Walter L. Sullivan all stock remaining or on hand at its cost price, taking security for such balance as may then be owing them at the time.
“The said suit pending in the Posey Circuit Court between said Sullivan & Wood,is to be dismissed, and the
“In the event that the said Lindley & Bro. shall exercise their option to resell, the said Sullivan, in addition to any sum he may then owe J. F. Lindley & Bro., shall only be compelled to pay the cost price of such goods remaining or as may have been added to the stock of J. F. Lindley & Bro., and if said Lindley & Bro. shall elect not to resell they shall pay said Sullivan the cost price of any goods remaining unsold which now belongs to the stock of Sullivan & Wood, after deducting all costs and expenses. The said Sullivan has a lease on the building now occupied by the goods herein sold. And the said J. F. Lindley & Bro. shall have the right to occupy the store room as long as they may desire at fifty-four ■dollars and fifteen cents per month.
[Signed] “Walter L. Sullivan,
“John P. Wood,
“J. F. Lindley,
“Hiram M. Lindley,
“J. F. Lindley, Jr.”
It appears from this agreement in the light of the surrounding facts and circumstances alleged in the complaint, that the firm assets of Sullivan & Wood, then in the possession of the receiver appointed by the court amounted in value to $8,292.17; that the firm indebtedness, specified in schedule C, amounted to $4,235.31, and that there was other firm indebtedness contracted by Sullivan, of which Wood then had no knowledge, amounting to $1,-500; that the assets were in the hands of the receiver for the purpose of being converted into money for the payment of the firm indebtedness; that on account of the
The appellees answered the complaint as follows:
“For answer to the complaint herein the defendants say that before the bringing of this action they paid in full all the debts of Sullivan & Wood, which are set out and mentioned in schedule C of the contract, which is filed with the amended complaint herein, and which debts amounted in the aggregate, as shown in said schedule, to $4,235.31. And the defendants paid all the sums due from Sullivan & Wood on each and- all of said debts, and have fully performed their contract to pay such debts, which is filed with the amended complaint. They further say that at the time of making the contract filed with the amended complaint and until a short time before the bringing of this action they had no knowledge, notice or information that said firm of Sullivan & Wood was indebted in any other sum or to pay any other person than the debts set out in said schedule C, and they executed said contract and carried out the same in. the full belief that said schedule contained all the debts of said Sullivan & Wood. The defendants did not, by said contract or otherwise, ever assume or agree to pay any other debts of said Sullivan & Wood than those set out in said schedule C. Wherefore,” etc-.
The court overruled, appellant’s demurrer to the answer, and this ruling presents the first question for our consideration.
The controversy arises as to the meaning of that part of the contract which is the undertaking by the Lindleys to pay and to save harmless John P. Wood from any liability he may incur or be responsible for by reason of having been a member of the firm of Sullivan & Wood. The contention of counsel for appellant is that this agreement with Wood alone is distinct from, and in addition to, the agreement which immediately precedes it, and that by this agreement appellees agree to do something more and something in addition to what they had before undertaken.
Counsel for appellees say: “The- theory of appellees
The rule of interpretation found in Bishop Contracts, section 384, is as follows: “Every clause and even every word should, when possible, have assigned to it some meaning. It is not allowable to presume, or to concede when avoidable, that the parties in a solemn transaction have employed language idly.” Pollock Contracts, 438.
The surrounding circumstances and the situation of the parties when the contract was made, when its terms are of doubtful or ambiguous meaning, may be considered for the purpose of arriving at the true intention. Indianapolis Cabinet Co. v. Herrman, 7 Ind. App. 462; Reissner v. Oxley, 80 Ind. 580, 584.
One of the rules of construction is that in any writing ‘general words shall be restrained into the fitness of the matter and the persons,” and “when there is a particular recital in a deed and general words follow the general words shall be qualified by the particular recital.” Burns v. Singer Manufacturing Co., 87 Ind. 541 (548).
The application of this rule is limited to cases where “from other covenants in the same deed it is plainly
The rule here applicable was correctly stated by Judge Lotz in Guaranty Savings and Loan Assn. v. Rutan, 6 Ind. App. 83, 87.
“The primary object in the construction of contracts is to ascertain the intention of the contracting parties, at the moment their minds assented to the same proposition. In the absence of the averments of any extrinsic matter, courts are confined to the contract as written. Evansville, etc., R. R. Co. v. Meeds, 11 Ind. 273; Beard v. Lofton, 102 Ind. 408.
“But this rule does not preclude the court from considering the situation and relation of the contracting parties, the objects to be accomplished, and the motives they had in dealing with each other. He who interprets should, as nearly as possible, put himself in the position of the parties at the time the contract was executed. He should consider the subject-matter of the agreement and the knowledge of it which the parties possessed, the objects to be accomplished and the motives which they had in dealing with each other. The whole writing should be considered also in determining' the meaning of any of its parts.”
In this connection it should be remembered that many ■of the material allegations of the complaint are not denied by the answer. The situation and relation of the parties, the value of the stock, the amount of the indebtedness, the objects to be accomplished and the motives they had in dealing with each other are not controverted.
In considering the sufficiency of the answer, it may be conceded that neither the Lindleys nor Wood had any knowledge of the. existence of the indebtedness in con
It is not claimed that there was any fraud, deception or concealment in any respect on the part of Wood, but it does appear that the opportunities of appellees to know the exact condition of the assets and liabilities of the firm, at the time the agreement was made, were at least equal to the opportunities of Wood.
The assets then in the hands of the receiver amounted in value to $8,434.75. The liabilities disclosed by Sullivan amounted to only $4,235.31. The motive of Wood in entering into an agreement by which he surrendered all interest in the firm was to secure his release from responsibility on account of the liabilities of the firm. The motive of appellees was to secure their individual account against Sullivan.
A reasonable construction of the contract, under the circumstances of this case, in the light of the authorities cited, would not, in our opinion, justify the court in the inference that the parties did not intend to use the general words referred to in the sense which they import. The import of the words used is that Wood was to be rid of all liabilities, for which he was responsible as a member of the firm of Sullivan & Wood, on condition that he would relinquish all his claims to the partnership assets in. the hands of -the receiver.
Appellees are only required to account to Sullivan for such excess as may remain after the payment of all the
The judgment of the court below is reversed, with instructions to sustain the demurrer to the answer with leave to amend, and for further proceedings not inconsistent with this opinion.