Russell v. Garrett

• Decision Date: 04 May 1922
• Docket Number: 3 Div. 556.
• Citation: 208 Ala. 92,93 So. 711
• Parties: RUSSELL v. GARRETT.
• Court: Alabama Supreme Court

93 So. 711

208 Ala. 92

RUSSELL v. GARRETT.

3 Div. 556.

Supreme Court of Alabama

May 4, 1922

Rehearing Denied June 30, 1922.

Appeal from Circuit Court, Montgomery County; Walter B. Jones Judge.

Action by W. P. Russell, as administrator, against Eva F. Garrett as executrix, for damages for breach of agreement. From judgment overruling demurrers to pleas, plaintiff takes nonsuit and appeals. Reversed and remanded.

Sayre J., dissenting in part.

Rushton & Crenshaw, of Montgomery, for appellant.

Steiner, Crum & Weil, of Montgomery, Joseph R. Bell, of Hayneville, and Harry T. Smith & Caffey, of Mobile, for appellee.

MILLER J.

On February 4, 1909 the Hayneville & Montgomery Railroad Company executed a note to Russell & Garrett for $12,635, payable January 1, 1910, with interest from date, secured by 38 bonds of the railroad company in denominations of $1,000 each. On January 15, 1910, after the maturity of the note, C. W. Garrett sold his interest in the note to W. P. Russell under a written agreement, which is as follows:

"For and in consideration of one dollar to me in hand paid by W. P. Russell, and the payment of six thousand nine hundred two and 94/100 dollars to me for the joint note of the Hayneville & Montgomery Railroad Company for $12,635, made to Russell & Garrett, Feb. 4, 1909, I hereby agree that in case the said W. P. Russell should at that time fail to collect or lose any or all of the above-named amount of $6,902.94, that I will reimburse the said W. P. Russell for any and all losses which he may sustain by reason of making the above named loan.

"Now, in order to better secure the said W. P. Russell, I hereby waive all my exemption rights which I have under the laws of Alabama in favor of the said W. P. Russell.

"It is hereby agreed and understood that I have the right to say when the above-described note against the Hayneville & Montgomery Railroad Company shall be foreclosed.

"[Signed] C. W. Garrett.

"Witness: J. D. Reese, Jr."

W. P. Russell and C. W. Garrett are both dead. W. P. Russell, as administrator with the will annexed of the estate of W. P. Russell, deceased, filed this suit on the contract for damages for its breach against Eva V. Garrett, as executrix of the estate of C. W. Garrett, deceased.

There are two counts in the complaint. Demurrers were sustained to each; plaintiff took a nonsuit; and this court reversed the case, holding the demurrers to the second count should have been overruled. Russell v. Garrett, 204 Ala. 98, 85 So. 420. This count, No. 2, set out the contract. It was construed on demurrer under averments of the complaint by this court in the opinion. The defendant filed 47 pleas to this count (2). Demurrers of plaintiff to 17 of these pleas were overruled. The plaintiff took a nonsuit. Section 3017, Code 1907. These rulings of the court are now assigned as errors. Some of these 17 pleas were filed before and demurrers to them were overruled by the court on November 9, 1920, and the other pleas were filed December 10, 1920, and demurrers to them were overruled by the court on April 11, 1921. The judgment of April 11, 1921, recites as follows:

"And on account of the adverse rulings of the court in overruling the plaintiff's demurrers to the special pleas filed by the defendant, the plaintiff takes a nonsuit with leave to review the rulings of this court in overruling plaintiff's demurrers to the special pleas of defendant in the Supreme Court."

Each of the 17 pleas is a special one; demurrers to some were overruled November 9, 1920; then other special pleas were filed, and demurrers to them overruled April 11, 1921, when the nonsuit as to the rulings on the pleadings-"overruling plaintiff's demurrers to the special pleas"-was taken by plaintiff.

The defendant insists that the overruling of demurrers to pleas 17, 18, 20, 21, 23, and 24, entered by the court November 9, 1920, should not be considered by this court, as the nonsuit was not taken by plaintiff until after the rulings on demurrers to other pleas were made by the court on April 11, 1921; that the last rulings, and not the former rulings of the court, caused the nonsuit. That part of the statute applicable reads:

"If, from any ruling or decision of the court on the trial of a cause, *** upon pleadings *** it may become necessary for the plaintiff to suffer a nonsuit, the *** ruling *** may be reserved for the decision of the Supreme Court *** by appeal on the record as in other cases." Section 3017, Code 1907.

In Laster v. Blackwell, 128 Ala. 145, 30 So. 663, this court wrote:

"The assignments of error relate alone to rulings in the exclusion of evidence and exceptions having been reserved to each, a fair construction of the bill of exceptions sufficiently indicates that the nonsuit was in consequence of those rulings cumulatively."

Again, in Engle v. Patterson, 167 Ala. 117, 52 So. 397, we find:

"This statute was not intended to authorize a plaintiff to escape a final judgment by taking a nonsuit, perhaps on the last ruling, and then review all anterior adverse rulings, but was intended to enable a review upon appeal only the ruling causing the nonsuit."

In Berlin Mach. Wks. v. Ewart Lumber Co., 184 Ala. 272, 63 So. 567, we find:

"It is true that we have frequently held that on an appeal from a voluntary nonsuit we would review those rulings only which super-induced the nonsuit; yet we have never held that, where several adverse rulings have super-induced the nonsuit, we would review only the last ruling."

The record shows the nonsuit was taken on account of the court overruling plaintiff's demurrers to the special pleas of defendant; the rulings of the court on April 11, 1921, and November 9, 1920, were both on demurrers to the special pleas; the record recites these rulings caused the nonsuit; these rulings of the court are cumulative. The combination of each ruling and these cumulative rulings cause the nonsuit as shown by the record, and these rulings on each should be considered on appeal. When the record discloses, as in this case, that the nonsuit was taken on account of the rulings of the court in "overruling plaintiff's demurrers to the special pleas," and each ruling of the court on the demurrer to each special plea may be assigned as error, and should be considered by this court; and it is immaterial that demurrers to these special pleas were overruled by the court on different dates. Engle v. Patterson, 167 Ala. 117, 52 So. 397; Berlin Mach. Wks. v. Ewart Lumber Co., 184 Ala. 272, 63 So. 567; Laster v. Blackwell, 128 Ala. 143, 30 So. 663.

The appeal must be taken within six months, not from the dates of the different rulings of the court on demurrers to the pleas, but from the date of final judgment of the court on the nonsuit of plaintiff. The nonsuit was taken and final judgment rendered thereon by the court on April 11, 1921. and security for the costs of the appeal was given by plaintiff and approved by the clerk on June 11, 1921. This appeal was within the time and in the manner allowed by the statute. Gen. Acts 1915, p. 711, as amended Gen. Acts 1919, p. 84.

In Birmingham Water Wks. Co. v. Windham, 190 Ala. 640, 67 So. 426, we find this principle declared on the interpretation of contracts:

"'Words may be supplied, or may be rejected, when necessary to carry into effect reasonable intention of parties'-a process that is allowable when there appears 'contradiction, ambiguity or uncertainty in the terms of the instrument.'"

See, also, Boykin v. Bank, 72 Ala. 262, 47 Am. Rep. 408.

There is ambiguity and uncertainty in this contract.

The general rule for interpreting contracts is expressed in 13 Corpus Juris, p. 525, § 486, as follows:

"A contract must be construed as a whole, and the intention of the parties is to be collected from the entire instrument, and not from detached portions, it being necessary to consider all of its parts in order to determine the meaning of any particular part as well as of the whole. Individual clauses and particular words must be considered in connection with the rest of the agreement and all parts of the writing, and every word in it will, if possible, be given effect."

In the case of Mobile County v. Linch, 198 Ala. 61, 73 So. 425, we find this rule:

"The true rule of interpretation of contracts is to make them speak the intention of the parties as at the time they were made. A corollary of this rule is that, where any doubt arises as to the true sense and meaning of the words themselves, or as to their application under the particular circumstances, their import may be shown by parol proof dehors the instrument itself."

See, also, Chambers v. Ringstaff, 69 Ala. 140; Cassels' Mill v. Strater Bros., 166 Ala. 283, 51 So. 969.

Contracts, not clear on their face, must be interpreted in the light of the circumstances surrounding the parties, when it was made, in arriving at their intention. In Whitsett v. Womack, 8 Ala. 481, the court wrote:

"And the condition of the bond ought to be construed, by rejecting insensible words, as to fulfill the intent of the parties. *** The court may depart from the letter of the condition of a bond, to carry into effect the intention of the parties."

In Wailes v. Howison, 93 Ala. 379, 9 So. 595, Justice Coleman wrote:

"And all its parts should be so construed as to give to each effect and validity (Comer v. Bankhead, 70 Ala. 136), and in case of 'contradiction, ambiguity or uncertainty' it is permissible to supply or reject words, to carry into effect the reasonable intention of the parties."

It appears from the complaint and the averments in pleas 17 and 18 that this $12,635 note was secured by $38,000 in bonds, in denominations of $1,000 each, as collateral; these bonds were secured by a first...