Capital City Bank v. Hilson

• Decision Date: 04 April 1910
• Citation: 59 Fla. 215,51 So. 853
• Parties: CAPITAL CITY BANK v. HILSON.
• Court: Florida Supreme Court

51 So. 853

59 Fla. 215

CAPITAL CITY BANK v. HILSON.

Florida Supreme Court

April 4, 1910

On Rehearing, April 6, 1910.

In Banc. Error to Circuit Court, Leon County; J. W. Malone Judge.

Action by I. B. Hilson against the Capital City Bank. Judgment for plaintiff, and defendant brings error. Reversed.

Syllabus by the Court

SYLLABUS

A declaration must show plainly and certainly all the circumstances material to the maintenance of the action, and if there be two intendments, it will be taken most strongly against the plaintiff.

Where the terms of a contract appear on their face to be inserted for the benefit of one of the parties, he will be considered as having inserted such terms and as having chosen the language thereof; and any ambiguity in such language is therefore, to be construed more strongly against the party making use of such language.

A contract to indemnify A. from certain named obligations of the 'C. P. Company and himself personally' covers prima facie only the joint debts of the C. P. Company and A and does not, unaided, support an action for the separate indebtedness of either.

Where, in an agreement to indemnify and release B. from certain obligations described as the obligations of A. and B. 'personally,' the word 'and' will not be construed as meaning 'or,' except for strong reasons and in order to carry out the manifest intention of the parties.

COUNSEL Neeley & Simmons, for plaintiff in error.

F. T. Myers and Blount & Blount & Carter, for defendant in error.

OPINION

HOCKER J.

I. B. Hilson, called herein the 'plaintiff,' sued the Capital City Bank, a corporation, herein called the 'defendant,' in an action at law, in the circuit court of Leon county in November, 1907, and recovered a judgment against the latter for $4,500, with interest at 8 per cent. from May 29, 1906, which is brought here by the defendant for review on writ of error.

The declaration as at first filed contained two counts. The first count is as follows:

'The plaintiff sues the defendant for and in consideration of the sale and delivery by plaintiff to it of a large amount of personal property exceeding in value $11,000 agreed by an instrument in writing which is hereto attached and made a part hereof, that is, the defendant would indemnify and release the plaintiff from certain obligations of the Capital Publishing Company, a corporation, and of the plaintiff specified in said writing; that among said obligations specified was an obligation or indebtedness of the Capital Publishing Company, to a certain concern therein called 'Merganthaler Company,' for about the sum of $6,500; that before the beginning of this suit the said obligation or indebtedness amounting to $6,500 became and was due and payable to the said concern, and plaintiff requested the defendant to pay the same, but that the defendant did refuse and has continued to refused to pay of the said indebtedness more than the sum of $2,000, leaving due and unpaid the sum of $4,500, which the plaintiff has been compelled to pay and has before the institution of this suit paid to the said concern, whereby the defendant has become and is indebted to plaintiff in the sum of $4,500.'

The second count is like the first, except that the obligation or indebtedness against which the defendant is alleged to have released and indemnified the plaintiff is that of the plaintiff instead of the Capital Publishing Company.

The agreement which is made a part of both of said counts is as follows:

'Capital City Bank (State Depository).

'G. W. Saxon, President.

'J. A. Ball, Vice President.

'Branch at Apalachicola, Fla.

'T. E. Perkins, Cashier.

'Jno. M. Bell, Asst. Cashier.

'Capital $50,000.

'Tallahassee, Fla., May 29, 1906.

'We hereby indemnify and release Mr. I. B. Hilson from the following obligations of the Capital Publishing Co. and himself personally.

Towers Mfg. Co........ about $ 87 00

S.P. Richards .................. 125 00

H. & W. B. Drew Co.............. 100 00

Morning News .................... 70 00

Schoemaker & Co................. 125 00

Cutter Rice & Co................ 425 00

Merganthaler Co............... 6,500 00

McDougall ...................... 350 00

Whitlock Prtg. Co............... 675 00

Antietam Paper Co............. 1,500 00

Electric Co..................... 176 00

'Capital City Bank,

'G. W. Saxon, Prest.'

Three pleas were filed by the defendant, as follows:

'(1) That it never was indebted as alleged.

'(2) That it did not promise as alleged.

'(3) That the indebtedness of $4,500, alleged in said declaration to have been paid by the plaintiff to 'Merganthaler Company, was not an obligation of the Capital Publishing Company and plaintiff personally from the payment of which the defendant agreed to indemnify and release the plaintiff.”

The first of these pleas was stricken on motion. Issue was attempted to be joined on the second, and to the third a demurrer was interposed, which was sustained. Two other pleas were filed, one of which was stricken, and to the other a demurrer was sustained. Some other proceedings were had, and then the plaintiff amended his declaration by adding two new counts, which are just like the two first counts, except that in neither is it alleged that the plaintiff has paid the $4,500, but simply that the defendant has refused to pay or release the plaintiff from the same. Pleas were interposed to these two counts, and demurrers to them were filed by the plaintiff. These demurrers were sustained. Besides the questions of law which arise out of these rulings, several interesting questions of parctice are presented, and incidentally we remark that it would seem as it section 1420, Gen. St. 1906, which seems to have been introduced into the statute law by the revisors, was not called to the attention of the court in dealing with a demurrer to a plea as valid some time after an issue upon said plea had been created by said section. But the fundamental question is: Has the plaintiff stated a cause of action in either count of his declaration? Independent of the fact that a demurrer to pleas reaches back to the declaration, this court will take notice of a fatal defect in the latter. Hall v. Northern & Southern Co., 55 Fla. 242, 46 So. 178, and cases cited; Kirton v. Attlantic Coast Line R. Co., 57 Fla. 79, 49 So. 1027. Time and again this court has adhered to the rule laid down in Bennett v. Herring, 1 Fla. 387, that 'the declaration must show plainly and certainly all circumstances material to the maintenance of the action for if there be two intendments it shall be taken most strongly against the plaintiff.' See cases cited in the concurring opinion of Mr. Justice Shackleford in Atlantic Coast Line R. Co. v. Benedict Pineapple Co., 52 Fla. 165; text 174, 42 So. 529, and Kirton v. Atlantic Coast Line R. Co., supra.

Reverting to the several counts of the declaration, it will be observed that each of them makes the agreement of the Capital City Bank a part of itself. It is the bases of the suit.

It follows from the foregoing rule of construction of declarations that in its construction no intendments favorable to the plaintiff can be indulged in. It is also laid down, as a rule in the construction of contracts, that, if the terms of a contract appear on their face to be inserted for the benefit of one of the parties, he will be considered as having inserted such terms and as having chosen the language thereof. Any ambiguity in such language is, therefore, to be construed more strongly against the party making use of such language. The rule is summarized in the maxim, 'Fortius contra proferentem.' 2 Page on Contracts, par. 1122. The agreement made a part of each count states the undertaking of the Capital City Bank in the following words: 'We hereby indemnify and release Mr. I. B. Hilson from the following obligations of the Capital Publishing Co. and himself personally.' The declaration counts on the copulative conjunction 'and,' used in the above quotation to connect the Capital Publishing Company with the word 'himself,' as being used in the sense of the disjunctive conjunction 'or,' and as being an indemnity against the separate debts of the Capital Publishing Company and I. B. Hilson. Now, there is no doubt that such a meaning may be given to the word 'and' when the whole context of the instrument in which it is used indicates that such a meaning should be given it, or when the situation of the parties and the surrounding circumstances show that the parties to the agreement intended that it should be so used. Snow v. Pressey, 85 Me. 408, 27 A. 272; Hale v. Sweet, 40 N.Y. 97. But when such an intention is not apparent from the context of the instrument, nor from the situation of the parties and the surrounding circumstances, the ordinary meaning of a word in primafacie facie that employed. 2 Page on Contracts, pars. 1105, 1123, 1125; Roome v. Phillips, 24 N.Y. 463.

In the case of Mayer v. Cook, 26 Misc. 774, 57 N.Y.S. 94 it was held that, 'under a guaranty to pay 'all bills of goods bought by B. And M.' not to exceed a gross sum, the guarantor is not liable for sales to either party individually, but only for joint sales.' The court says in its opinion: 'It is manifest that an engagement to answer for the obligations of debtors collectively cannot be extended to their individual obligations.' It is further said: 'While courts have construed 'and' as 'or,' and vice versa, such construction has been sanctioned only for strong reasons, and in order to carry out the manifest intention of the parties.' See, also, Robinson v. Southern Pac. Co., 105 Cal. 526, text 541, 38 P. 94, 28 L. R. A. 773. In 2 Am. & Eng. Ency. of Law (2d Ed.) p. 333, title 'And,' it is said: ...