Holmes v. Kilgore

• Court: Florida Supreme Court
• Writing for the Court: TERRELL, J.
• Citation: Holmes v. Kilgore, 89 Fla. 194, 103 So. 825 (Fla. 1925)
• Decision Date: 28 February 1925
• Parties: HOLMES v. KILGORE.

103 So. 825

89 Fla. 194

HOLMES v. KILGORE.

Florida Supreme Court, Division B.

February 28, 1925

Suit by George W. Holmes, as receiver of the estate of Bartlett L Paine, deceased, against Barnard Kilgore. From decree below complainant appeals.

Reversed and remanded.

Syllabus by the Court

SYLLABUS

On formation of issue giving rise to subject of judicial investigation, decree should be founded on evidence and not on presumption. In a suit by a receiver for an accounting on a contract where the bill and answer make a clear issue, it becomes a subject of judicial investigation, and the equities of the parties being at stake, the decree of the chancellor should be founded on a consideration of the evidence adduced and not on presumptions.

Admitting testimony of party to contract as to interpretation of contract, opposite party to which was deceased held error. Under the provisions of section 2705, Revised General Statutes 1920 of Florida, when suit is brought by the receiver of a deceased party for accounting on a contract the surviving party is prohibited from giving testimony as to any 'transaction or communication' between him and the deceased party, unless the receiver testifies in regard to such transaction or communication.

If no competent direct testimony is adduced to shed light on ambiguity of contract, court must resort to plain terms of entire instrument. The law is against the destruction of contracts because of ambiguity. If no competent direct testimony is adduced to shed light on this intention, the court must then resort to the plain terms of the entire instrument, and in this connection he will be guided by the nature, subject-matter, and purpose of the contract.

Contracts must be given reasonable interpretation according to intention of parties at time of executing them. All contracts must be given a reasonable interpretation according to the intention of the parties at the time of executing them, if that intention can be gleaned from the language of the contracts.

If language of contract is contradictory or meaning susceptible of two constructions, interpretation making it rational and probable will be preferred. Where the language of a contract is contradictory, obscure, or ambigous, or where its meaning is doubtful so that it is susceptible of two constructions, one of which makes it fair, customary, and such as a prudent man would naturally execute, while the other makes it inequitable, unnatural, or such as a reasonable man would not be likely to enter into, the interpretation which makes a rational and probable agreement must be preferred.

To arrive at intention of parties, contract must be read in light of circumstances under which executed. It is a well-established canon or rule of construction that in order to arrive at the intention of the parties, the contract must be read in the light of the circumstances under which it was executed.

Appeal from Circuit Court, Pinellas County; M. A. McMullen, judge.

COUNSEL

McKay & Withers, of Tampa, for appellant.

W. B. Dickenson, of Tampa, for appellee.

OPINION

TERRELL J.

Bartlett L. Paine, of Lincoln, Neb., and Barnard Kilgore, of Clearwater, Fla., became involved in three separate contracts. The first of said contracts was a partnership contract on the part of Paine and Kilgore to purchase and operate a certain orange grove at Crystal Beach, Fla. The second contract was an agreement on the part of Paine to sell to Kilgore an undivided onehalf interest in a certain orange grove near Clearwater, Fla.; and the third contract was an agreement on the part of Paine to sell Kilgore certain lands in Palm Beach county, Fla.

The bill in effect alleges that early in 1921, when all these contracts were alive, Paine died, and George W. Holmes, appellant, was appointed receiver of his estate. This suit is brought by Holmes, as receiver of the estate of Paine, against Kilgore for an accounting on all of said contracts. Answer was filed and a master was appointed to take testimony.

Some testimony was taken for the purpose of determining the state of the accounts between the parties when it developed that the accounts were not complete and that the parties were widely at variance as to the law of the case. It was then agreed that the master's report of the testimony taken should be filed and the cause submitted to the court on final hearing for the purpose of adjudicating the equities between the parties by construing the contracts and ruling upon the admissibility of any testimony that had been introduced, and establish a rule to be followed in stating a final account between the parties. From such final decree ruling on objections to testimony and construing the contracts or adjudicating the equities between the parties, appeal is taken to this court.

The first contract was dated April 15, 1914, and, omitting description and formal parts, is as follows:

'The amount paid for the property being thirteen thousand seven hundred fifty, ($13,750.00) dollars, six thousand two hundred in cash, the balance in three equal annual payments, with interest at eight per cent. per annum; it being the agreement that B. L. Paine furnish the money for the cash and deferred payments, when same is in excess of the net income from the grove, while B. Kilgore is to have charge of the property, and see that the place is properly cared for, for which service he is to receive no salary.

'This agreement is to continue in full force and effect for five years, or such time before as B. Kilgore shall repay B. L. Paine one-half the entire amount invested to that date, including interest at seven per cent.

'All net income shall be paid to B. L. Paine, but shall be divided on the basis of equal joint ownership, when final settlement has been reached.

'After final settlement, the property shall be owned and operated as equal ownership, each party sharing profits and losses alike.'

In adjudicating the equities of the parties as affected by the foregoing terms of the first contract, the court,...