Friedman v. Virginia Metal Products Corp.
| Decision Date | 29 January 1952 |
| Citation | 56 So.2d 515,33 A.L.R.2d 956 |
| Parties | FRIEDMAN et al. v. VIRGINIA METAL PRODUCTS CORP. |
| Court | Florida Supreme Court |
Julius I. Friedman, Miami Beach, for appellants.
Watkins & Cohen, Tallahassee, and Walter C. Kovner, Miami Beach, for appellee.
The appellee sued the appellants in the Circuit Court of Dade County on a written guarantee which reads as follows: 'I hereby personally guarantee the account of Shore Equipment & Supply Co. of Florida, Inc., located at 3164 North Miami Avenue Miami, Florida; this guarantee to cover all materials purchased by Shore Equipment & Supply Co. of Florida, Inc., from Virginia Metal Products Corporation.'
The record shows that a demurrer to the original declaration was sustained, and thereupon an amended declaration was filed. The record does not disclose the contents of the original Declaration. The Amended Declaration alleged in Count I: 'Defendants did guarantee the Plaintiff payment for all materials purchased from Plaintiff by Shore Equipment & Supply Co. of Florida, Inc., and that said guarantees were intended to guarantee payment to Plaintiff of all materials purchased by Shore Equipment & Supply Co. of Florida, Inc., from Plaintiff in the past and all materials to be purchased by Shore Equipment & Supply Co. of Florida, Inc., from Plaintiff in the future.' (Italics supplied.) And alleged in the Second Count of said Amended Declaration: 'On the 6th day of December, 1948, the Defendants, in order to induce the Plaintiff to continue to sell Shore Equipment & Supply Co. of Florida, Inc., its materials, did execute and deliver to the Plaintiff their guarantees whereby the Defendants did guarantee to the Plaintiff the account of Shore Equipment & Supply Co. of Florida, Inc., which said guarantees covered all of the materials purchased in the past and to be purchased in the future by Shore Equipment & Supply Co. of Florida, Inc., from the Plaintiff.' (Italics supplied.) And further alleged in said Counts: 'Copies of said guarantees are attached hereto and marked Plaintiff's Exhibits I and II, respectively.'
It should be noted that in the Amended Declaration the appellee did not rely upon the words of the guarantee, but in each count supplemented the guarantee by alleging 'said guarantees were intended to guarantee payment to the plaintiff of all materials purchased by Shore Equipment & Supply Co. of Florida, Inc. from plaintiff in the past and all materials to be purchased * * * in the future'.
The defendants demurred to each count of the Amended Declaration and set forth among other things the following:
'There is a variance between the allegations in said count and the Plaintiff's Exhibits I and II.'
'The allegations in said count seek to contradict, alter and vary the terms of Plaintiff's Exhibits I and II.'
'Said count does not allege an account stated between the Plaintiff and Shore Equipment & Supply Co. of Florida, Inc.'.
This demurrer to the Amended Declaration was overruled and the appellants in due course filed pleas to each count of the Amended Declaration. Among other things these pleas denied: (1) that the appellee sold the certain quantities of merchandise as alleged, (2) that the appellants purchased the certain quantities of merchandise as alleged, (3) that they did guarantee as alleged, and (4) that they ever intended to guarantee as alleged.
At the trial of the cause the construction of the written guarantee above set forth became the material issue. It was contended by the appellants that the guarantee properly construed, meant that it was limited to 'all materials purchased' at the time of the execution and delivery of the written guarantee.
It was contended by the appellees, as shown by Counts I and II of the Amended Declaration above set forth, that 'said guarantees were intended to guarantee payment to plaintiff of all materials purchased * * * from plaintiff in the past and all materials to be purchased * * * from plaintiff in the future'.
There appears to have been no dispute between the parties that the words 'guarantee the account of Shore Equipment & Supply Co. of Florida, Inc.' was limited to an account to cover 'all materials purchased' from the appellee. In other words, it was not to cover materials purchased from someone else, but the account was to cover only 'materials' purchased from appellee. The real dispute arose as to the construction to be placed upon the word 'purchased'.
The trial judge determined that the word 'purchased' was clear, definite and unambiguous, and included all materials 'purchased in the past' and all materials to be 'purchased in the future', and would not permit parol testimony about the contract on the theory that it would change, alter or vary the terms of a written instrument.
It is a cardinal rule, that the construction of all written instruments, is a question of law and belongs to the courts, provided: 'the language used is clear, plain, certain, undisputed, unambiguous, unequivocal, and not subject to conflicting inferences'. See 53 Am.Jur., Sec. 268 on Trials, p. 227, and Wigmore on Evidence (3d ed), Sec. 2556, p. 523.
The important question to be determined here is whether or not the word 'purchased' under the circumstances developed in this case, is clear, plain, certain, undisputed, unambiguous, unequivocal, and not subject to conflicting inferences.
The trial judge was correct in excluding parol testimony to vary or change the terms of a...
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...not create one so that we may add by construction terms which the parties have expressly omitted. See Friedman v. Virginia Metal Products Corp., Fla.1952, 56 So.2d 515, 33 A.L.R.2d 956. Finding this integrated contract to be clear and unambiguous, we have no reason to discuss the implicatio......
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