St. Lucie County Bank & Trust Co. v. Aylin

• Citation: 114 So. 438,94 Fla. 528
• Parties: ST. LUCIE COUNTY BANK & TRUST CO. v. AYLIN et al.
• Decision Date: 01 August 1927
• Court: United States State Supreme Court of Florida

114 So. 438

94 Fla. 528

ST. LUCIE COUNTY BANK & TRUST CO. v. AYLIN et al.

Florida Supreme Court, Division B.

August 1, 1927

Rehearing Denied Oct. 19, 1927.

Action by the St. Lucie County Bank & Trust Company against E. Grace Aylin, a free dealer, and others, for a decree authorizing the application of proceeds of pledged securities to the payment of certain notes, interest, and attorney's fees. From a decree sustaining a demurrer to the complaint complainant appeals.

Affirmed.

Syllabus by the Court

SYLLABUS

Courts may take judicial cognizance of things everybody knows uncertain and ambiguous language in contract must be construed against party using it. What everybody knows the courts are assumed to know, and of such matters may take judicial cognizance. Where one of the parties to a contract chooses the language used, such party is responsible for any alleged uncertainty and ambiguity in the contract, and must suffer the result of having such language construed against him.

Where contract prepared by complainant did not clearly show intent of both parties that pledged collateral should secure certain notes, and it was unreasonable to assume such fact from complaint, contract must be construed against complainant. The contract not being clear that it was the intention of both parties that the collateral was pledged to secure the payment of the Braswell notes, and it being unreasonable to assume from the allegations of the bill of complaint that such was a fact, the complainant in the court below must suffer the result of having the contract construed against its contention in this regard.

Where meaning of words in contract is doubtful, resort may be had to surrounding facts and circumstances; promise understood in more than one sense is to be interpreted as promisor had reason to believe it was understood. Where a doubt exists as to the meaning of words, resort may be had to the surrounding facts and circumstances to determine the meaning intended. If the language of a promise may be understood in more senses than one, it is to be interpreted in the sense in which the promisor had reason to believe it was understood.

Court should as much as possible place itself in situation of parties, and from circumstances, occasion, and apparent object determine intent of language of written contract. In the construction of written contracts it is the duty of the court, as near as may be, to place itself in the situation of the parties, and from a consideration of the surrounding circumstances, the occasion, and apparent object of the parties, to determine the meaning and intent of the language employed.

Contract should not be interpreted by giving strict and rigid meaning to general words or expressions, regardless of circumstances of parties' apparent purpose. Contracts are not to be interpreted by giving a strict and rigid meaning to general words or expressions, without regard to the surrounding circumstances or the apparent purpose which the parties sought to accomplish.

[ST LUCIE COUNTY BANK & TRUST CO V AYLIN 114 So. 438(1927)] Appeal from Circuit Court, St. Lucie County; Elwyn Thomas, judge.

COUNSEL

Fee &amp Liddon, of Ft. Pierce, for appellant.

Nottingham & Anderson, of Ft. Pierce, for appellees.

OPINION

BUFORD, J.

In this case bill of complaint was filed alleging:

That the defendant Aylin, a free dealer, on the 11th day of October, 1926, was indebted to the complainant in the sum of $2,312, and made a note payable to the bank for the sum of $2,312, in words and figures, as follows:

'$2,312.00 Ft. Pierce, Fla., October 11, 1926.

On January 10, 1927, after date, I promise to pay to the order of St. Lucie County Bank & Trust Company twenty-three hundred twelve and no/100 dollars with interest after maturity at the rate of eight per cent. per annum until paid, for value received, negotiable and payable at St. Lucie County Bank & Trust Company, at Ft. Pierce, Florida, and, if not paid at maturity, this note may be placed in the hands of an attorney at law for collection, and, in that event, it is agreed and promised by the makers and indorsers, severally, to pay additional thereto all costs including reasonable attorney's fees that said bank may incur or be put to in the collection hereof, having deposited with the said bank as collateral security for the payment of this note, and any note given in extension or renewal thereof, and as security for the payment of any other liability or liabilities of the undersigned to said bank, whether now existing, or hereafter arising, the following securities, viz.: Col. attached, the present market value of which is hereby estimated to be ----- dollars; and should the market value of the said securities decline below herein fixed, the undersigned hereby agrees to make payment on account of this obligation satisfactory to the said bank, or to deliver to said bank additional securities to the satisfaction of the said bank and for any other liabilities to said bank, whether due or not due or hereafter arising, the undersigned also hereby gives to said bank a lien upon all property or securities given to or left in possession of the said bank by the undersigned.[ST LUCIE COUNTY BANK & TRUST CO V AYLIN 114 So. 438(1927)] For value received the undersigned hereby further agrees that either upon the nonpayment of this promise to pay, or upon the bankruptcy or the insolvency of the undersigned, or upon the nonpayment of any of the liabilities of the undersigned to said bank, or upon the failure of the undersigned within three days after date of mailing notice addressed to the undersigned, at his address as given by him at the time of the making of this note, and indorsed at the foot of this note, or if not so indorsed at his last known address, to make satisfactory payment on account, or to furnish additional securities satisfactory to the said bank in case of a decline as aforesaid, this note and all other obligations and liabilities of the undersigned to said bank, at the option of said bank, shall forthwith become due and payable without further demand or notice, except the said bank shall allow proper credit for unaccrued interest paid in advance; and the said bank shall have full power and authority to sell, assign, and deliver the whole or any part of the above-mentioned property and securities, or any part thereof, or any substitutes therefor, or of any additions thereto, at private or public sale, at the option of said bank, after ten days' notice to the undersigned as prescribed by law. And at such sale the said bank may become the purchaser of the whole or any part of the said securities free from any right of redemption by the undersigned, which is hereby expressly waived and released. In case of sale for any cause, after deducting all the legal and other costs for collection, sale and delivery of said property, including attorney's fees, as hereinbefore provided, the said bank may apply the residue of the proceeds of the sale or sales so made to pay this note, and then to pay any or all of the liabilities of the undersigned to said bank, whether due or not due or hereafter arising, as said bank shall determine, making proper rebate for interest on liabilities not due, returning the overplus, if any, to the undersigned; and the undersigned also agrees that the exercise, or the omission to exercise, by said bank, of any of the rights and privileges hereby conferred upon said bank, shall not waive or affect any other or subsequent right to exercise the same. And the undersigned also agrees to be and remain liable to said bank for any deficiency after such sale or sales so made, together with interest thereon at the rate of eight per cent. per annum until the same is fully paid.

'Address: --------.

'E. Grace Aylin.'

That at the time this note was given certain other notes were deposited with the bank and annexed to that note as collateral for the obligations therein mentioned. That prior to the making of that note, on the 9th of June, 1926, the bank had become the owner of two notes made by Aylin, Ira W. Upshaw, William Freegard, and Florence A. Freegard to Charles C. Braswell, dated the 15th day of August, 1925, one for $11,000, due one year after date, and one for $10,750, due two years after date. The bill alleges that the note for $11,000 was not paid at maturity, and that a clause in the mortgage given to secure the payment of the lastmentioned two notes provided that, in case of default in the payment of one of such notes, both should become due and payable, and the mortgage foreclosable. We infer from allegations of the bill that there were other notes secured by the same mortgage, and that these two notes were held by the bank, while other notes and the mortgage were held by other parties. The bill alleges that a suit had been instituted to foreclose the mortgage, and the bank had been made a party defendant in that suit, and that the property embraced in the mortgage would not bring more than 10 per cent. of the mortgage indebtedness.

The bill alleges that the complainant believes that Aylin is insolvent. The purpose of the bill is to procure a decree authorizing the complainant to apply the proceeds of the securities pledged and deposited with the $2,312 note to the payment of the Braswell notes in the aggregate sum of $21,750, together with interest and attorney's fees. The complainant in its bill set up certain rights in its behalf and presented its prayer in the following language:

'Your orator therefore says...