Aldous v. Intermountain Building & Loan Association of Arizona

Decision Date20 January 1930
Docket NumberCivil 2817
Citation36 Ariz. 225,284 P. 353
PartiesJOHN L. ALDOUS, Appellant, v. INTERMOUNTAIN BUILDING & LOAN ASSOCIATION OF ARIZONA, Appellee
CourtArizona Supreme Court

APPEAL from a judgment of the Superior Court of the County of Yavapai. A. S. Gibbons, Judge. Affirmed as to second cause of action and reversed and remanded for new trial on first cause of action.

Messrs Favour & Baker, for Appellant.

Messrs Norris, Flynn & Patterson, for Appellee.

OPINION

LOCKWOOD, C. J.

John L Aldous, hereinafter called plaintiff, brought suit against Intermountain Building & Loan Association of Arizona, a corporation, hereinafter called defendant, in the superior court of Yavapai county. The matter was heard before the court sitting without a jury, and judgment was rendered for defendant; whereupon plaintiff appealed from the judgment and from the failure of the court to make findings of fact and conclusions of law, after they had been requested.

Plaintiff's action was based on the provisions of two contracts: The first, between himself and defendant; and the second, between one David Odden and defendant, Odden having assigned his rights in his contract to plaintiff. The complaint alleged that Odden and Aldous each had on deposit with defendant certain sums of money representing payments which they had made to it; that these deposits were made under an agreement that, in the event of the permanent disability of the depositors, they might receive back their deposits in full with six per cent interest; that each of them was permanently disabled, and had made demand for return of the deposits, but defendant had failed and refused to pay them.

Defendant answered, admitting the receipt of the various sums alleged in the complaint, and that it had entered into contracts with Aldous and Odden, which contracts, it alleged, among other things, contained the following clause:

"In the event of death or the permanent total disability of the legal owner of this certificate and provided the installment payments have each been made promptly as due, we will pay to the legal representative on demand within thirty days after receipt by us of satisfactory proofs of death, or permanent total disability, all moneys paid on this certificate, less membership fee, plus interest at the rate of five per cent per annum." and it then alleged, as against the claim of Aldous, individually:

"Defendant denies that the plaintiff is totally and permanently disabled. . . ." And further: "Defendant further alleges that the plaintiff has failed to furnish to the defendant satisfactory proof, or any proof at all, of his permanent total disability."

In respect to the claim under Odden's contract, defendant alleged as follows:

". . . This defendant denies that the said David Odden was permanently disabled during the month of December, 1926, or at any time. . . ."

The case was tried on the issues raised by the complaint and answer on April 19th, 1928, and taken under advisement until June 30th. On that date, the record shows judgment was rendered in favor of defendant and against plaintiff on both causes of action -- the court, at the time of entering judgment, making certain oral statements concerning the grounds of its decision, which were taken down and transcribed by the clerk. On July 3d plaintiff filed a written request for findings of fact and conclusions of law, but none were ever made in compliance with such request.

There are a number of assignments of error, but on examining the record we think it best first to discuss the case on the basis of the fundamental principles of law applicable thereto, and afterwards, if necessary, to take up the specific assignments of error. The first question we consider is the construction of the written contracts on which the suit was based. It is the contention of plaintiff that under such contracts, any time he and Odden were "permanently disabled," they could recover the full amount paid defendant, plus six per cent interest. On the other hand, defendant insists that not until their deaths could such sums be recovered, or, if they are recoverable upon disability, such disability must be both permanent and total. The original contracts were introduced in evidence, and it appears the provision in regard to payment on disability reads as follows:

"In the event of death or the permanent disability of the legal owner of this certificate and provided the installment payments have each been made promptly as due, we will pay to the legal representative on demand within thirty days after receipt by us of satisfactory proofs of death, all monies paid on this certificate plus interest at the rate of six per cent. per annum."

The words in such clause, "or the permanent disability," were stamped with red ink, evidently being inserted after the printed form of contract had been prepared. No other portion of the contract refers to payment upon disability. It is clear that this provision of the contract, before the addition of the words "or the permanent disability," gave to the personal representatives of plaintiff -- after the death of the latter -- the privilege of collecting the entire amount paid in plus six per cent interest. If we adopt the construction placed by defendant upon the clause as amended, the words added are mere surplusage; for their addition would in no way change the legal effect of the contract from what it was without them. It is a cardinal rule of the construction of contracts that some effect is to be given, if possible, to every part thereof. And a contract is to be construed most strongly against the person who prepared it. The only possible way in which any effect can be given to the added phrase is on the theory of plaintiff, to wit, that his representatives could recover the amount paid, in case of his death; and he could recover, himself, in case of permanent disability; and such, we are satisfied, is the legal interpretation of the contract. It will be noted the clause discussed refers to "permanent disability," instead of "permanent a "permanent disability," instead of "permanent and total disability" as claimed by defendant. If, therefore, the pleadings and the evidence show "permanent disability" of plaintiff and Odden, and if they made proper demand for a return of the...

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6 cases
  • Parsons v. Ryan
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • January 29, 2020
    ...construction of contracts that some effect is to be given, if possible, to every part thereof." Aldous v. Intermountain Bldg. & Loan Ass’n of Ariz. , 36 Ariz. 225, 284 P. 353, 355 (Ariz. 1930). Although the district court’s enforcement authority is limited by the terms of the Stipulation, D......
  • Covington v. Basich Bros. Const. Co.
    • United States
    • Arizona Supreme Court
    • July 3, 1951
    ...will be construed most strongly against the person making it. Hoover v. Odle, 31 Ariz. 147, 250 P. 993; Aldous v. Intermountain Building & Loan Ass'n, 36 Ariz. 225, 284 P. 353; Paine v. Copper Belle Mining Co., 13 Ariz. 406, 114 P. 964; Shannon Copper Co. v. Potter, 13 Ariz. 245, 108 P. 486......
  • In re Estate of Brashear, Civil 4069
    • United States
    • Arizona Supreme Court
    • December 11, 1939
    ... ... 33, 250 ... Pac, 354, 49 A.L.R. 1311; Aldous v ... Intermountain B. & L. Assn., 36 Ariz ... ...
  • Julian v. Carpenter
    • United States
    • Arizona Supreme Court
    • January 20, 1947
    ... ... 80, 255 P ... 996, 57 A.L.R. 196; Aldous v. Intermountain Bldg. & Loan ... Ass'n, 36 ... ...
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