King v. Capitol Amusement Co., 1 Div. 612.
| Decision Date | 30 October 1930 |
| Docket Number | 1 Div. 612. |
| Citation | 130 So. 799,222 Ala. 115 |
| Parties | KING v. CAPITOL AMUSEMENT CO. |
| Court | Alabama Supreme Court |
Rehearing Denied Nov. 28, 1930.
Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge.
Action by J. H. King against the Capitol Amusement Company. Plaintiff takes a nonsuit and appeals from adverse rulings on pleading.
Reversed and remanded.
Dozier & Gray, of Mobile, and C. W. Taylor, of Birmingham, for appellant.
Gordon Edington & Leigh, of Mobile, for appellee.
On October 4, 1928, the defendant, appellee here, signed and delivered to the plaintiff a letter, omitting the address and signature, in words following:
Subsequently the plaintiff was sued by one or more of the distributors or producers on "existing film contracts," who recovered judgments against the plaintiff, and the question presented by this appeal is whether the obligation stated in said letter is one of mere indemnity against loss or damage suffered, necessitating payment or satisfaction of the judgment as a predication to plaintiff's right to maintain his action, or is one of indemnity against liability?
The letter which is set out in hæc verba in defendant's plea 2, the demurrer to which was overruled, shows on its face that it does not contain the entire agreement between the parties, referred to as the agreement entered into "between yourself and Capitol Amusement Company Inc.," and relating to "existing film contracts."
It is a well-settled principle that the intention of the parties which courts seek to discover in construing a contract, is to be gathered, not from particular words and phrases, but from the whole context of the agreement. And where the contract is partly written and partly oral, the written and oral parts must be construed together. 6 R. C. L. 837, § 227; American Mercantile Exchange v. Blunt, 102 Me. 128, 66 A. 212, 10 L. R. A. (N. S.) 414, 120 Am. St. Rep. 463, 10 Ann. Cas. 1022. And in case of doubt as to the purport and meaning of the writing, the doubt will be resolved against the party who drew it. 6 R. C. L. 854, § 242; Woods v. Postal Telegraph-Cable Co., 205 Ala. 236, 87 So. 681, 27 A. L. R. 834; Birmingham Motor Co. v. Norwood Transporting Co., 16 Ala. App. 572, 80 So. 146.
Taking as true the averments of the complaint and construing them in connection with the plea, it appears that at the time the agreement was entered into the plaintiff was under contract to use certain films produced or distributed by Tiffany-Stahl Productions, Inc., and another producer or distributor. And in consideration of the plaintiff becoming a party to a joint adventure with the defendant in the conduct of a motion picture business, the defendant agreed to hold the plaintiff "harmless from any loss or damage in the event of any suit" on any of said existing film contracts. That as the result of said joint adventure the plaintiff breached his said contract, and the producers and distributors, who were parties thereto, have sued and obtained said judgments, which have been registered so as to become liens on any property of the plaintiff subject to execution. (Italics supplied.)
The distinction between contracts of mere indemnity against loss or damage and indemnity against liability is well established. No liability arises in the first-mentioned class, until the indemnitee has been damnified by being compelled to pay, or his property has been subjected. Lane v. Westmoreland, 79 Ala. 374; 31 C.J. 439, § 35.
In the latter class, as a general rule, the indemnitee's case arises on the contract when his liability is fixed and ascertained. Stephens v. Pennsylvania Casualty Co., 135 Mich. 189, 97 N.W. 686, 3 Ann. Cas. 478; 31 C.J. 438, § 33.
To state the rule in the language of the text, 31 C.J. 437, § 32, "An...
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