HALE, Justice.
Appellee sued appellant for damages on account of the alleged breach of a “Retail Protection Agreement For Automobile Dealers” dated October 21, 1948, hereafter referred to as the protection agreement-On December 21, 1948, R. D. Spann purchased a new Hudson automobile, hereafter referred to as the car, from appellant at the agreed price of $3742.32. Spann paid $1110 in cash or trade-in value and executed a combination note and chattel mortgage-covering the car for the balance of the purchase price, the note being payable in 18 equal monthly installments of $146.24 each. For a valuable consideration the note and' mortgage was immediately sold and assigned to appellee by appellant without recourse as to Spann’s obligation of payment-Spann defaulted in the payment of the note and delivered the car to appellee who, after-calling upon appellant to purchase the car at a price equal to the balance due on the unpaid note of Spann, sold the car at auction sale for $1000. Appellee then sued appellant for damages in a sum equal to $1,000 less than the balance due on the unpaid note of Spann.
Appellant answered the suit with a general denial and a plea that he had sold and assigned the note and mortgage to appellee without recourse and without any contingent liability whatsoever. The case was tried before the court below without a jury and resulted in judgment for appellee in the sum of $1339.84. Appellant says the judgment should be reversed and here rendered in his favor because the facts disclosed by the evidence show that he is in no wise liable to appellee under a proper construction of the contractual relations existing between the parties.
We find no material ambiguity in the combination note and mortgage or the written assignment by which the same was transferred to appellee. The assignment was clearly without recourse against appellant. Consequently, if there is any liability from appellant to appellee in this cause the basis thereof must be found in the protection agreement and not in the assignment of the mortgage-note.
The so-called protection agreement was headed in large print “Retail Protection Agreement For Automobile Dealers,” was addressed to appellee, was signed by appellant and consisted o-f 9 numbered para[729]*729graphs as fully shown in the attached footnote.1 The agreement was not signed by appellee and its terms were not accepted unless the fact that appellee purchased contracts from appellant subsequent to October 21, 1948, constituted an acceptance thereof.
Under the three points in his brief, appellant contends in substance that the dominant [730]*730purpose of the foregoing instrument was to protect him against personal liability on all paper which he might sell and assign to appellee without recourse; that if such was not its clearly expressed purpose, it was reasonably susceptible of that construction and since it was written by appellee it should be so construed; and if that was not the true intent and meaning of the instrument as a whole, then it had no material meaning as applied to the facts of this case and should be held to be void and unenforceable as a contract. In its brief, appel-lee says: “Both the plaintiff and defendant intended that the defendant should not. be personally bound to pay the customer’s note but that in the event the automobile was recovered or repossessed the defendant should buy it back and pay the unpaid balance due, subject to the offsets and balances established under the other terms of the contract.”
In passing upon the contentions thus presented, it is the duty of this court to consider the alleged agreement in its entirety in order to ascertain from the language therein employed whether the parties thereby intended that appellant should become obligated to purchase the Hudson car under the circumstances here in evidence. If such was the general intent and leading purpose of the instrument, it should be given that effect in spite of any minor provisions of an inharmonious nature, provided such intent is not in conflict with any applicable rule of law. 10 T.J. p. 272, Sec. 159 and authorities.
We entertain considerable doubt as to whether the alleged agreement ever im-poséd' any 'binding obligation on either party to this suit. Most of its terms and provisions are so ambiguous that its true intent and meaning as a whole is vague, indefinite and uncertain. Furthermore, even though it had been signed by appellee, it did not purport to obligate appellant to sell any paper to appellee and it did not obligate ap-pellee to buy any paper that might be tendered to it by appellant. But if the instrument was sufficiently certain in its terms to have any meaning and if it ever amounted to anything more than a unilateral agreement signed by appellant without any consideration, we have no doubt whatsoever that it ought to be construed from its four corners as imposing no legal obligation on appellant to purchase the Hudson car from appellee.
' In order to impose any obligation upon appellant to purchase the car, it is unquestionably necessary to apply paragraphs 2 and 3 as a part of the protection agreement. But paragraph 1 thereof expressly provides that in certain cases “paragraphs 2 and 3 shall not apply.” What, then, is the meaning of the expression “in such cases” as contained in the last clause of the complete sentence embraced in paragraph 1 ? It will be noted that the clause immediately preceding such expression is set apart from the remainder of the sentence in which it is found by two semicolons. The antecedent clause contains two exceptions (or a double exception) relating to two types of paper which it was contemplated would be assigned without recourse and with recourse, respectively. If the expression “in such cases” was not intended to include both of the antecedent exceptions, then we think it would be more reasonable to assume that the parties thereby intended that paragraphs '2 and 3 would apply in cases where the paper was to be assigned with full recourse than to' cases where the paper was to be assigned without recourse. In our opinion, any other construction would convert [731]*731paragraph 1 into a jargon of doubletalk, would defeat the dominant purpose of the instrument as a whole in that it would deprive appellant of any effective protection against liability on paper' sold to appellee without recourse, and would change the proposed agreement into an instrument of wholesale oppression for automobile dealers rather than a protective agreement for their benefit.
The evidence shows that the mortgage-note involved in this suit did not cover any ■of the types of cars described in the second exception contained in paragraph 1 of the protection agreement, in that the Hudson car sold to Spann was not a commercial car, 'bus or taxi, and Spann was not a relative or employee of the dealer. Appellant testified to facts showing that when he sold and assigned the Spann mortgage-note to appel-lee without recourse, he did not intend thereby to obligate himself to indemnify ap-pellee against any character of loss it might sustain in the event Spann should fail to pay the note, and it was not his understanding at any time that the protection agreement was intended to impose any such obligation upon him. On the contrary, it was his understanding that the proposed agreement was intended to protect him from personal liability of any kind on all paper sold to appel-lee other than that described in the second exception contained in paragraph 1 thereof, and but for such understanding on his part he would not have signed the proposed agreement.
Free access — add to your briefcase to read the full text and ask questions with AI
HALE, Justice.
Appellee sued appellant for damages on account of the alleged breach of a “Retail Protection Agreement For Automobile Dealers” dated October 21, 1948, hereafter referred to as the protection agreement-On December 21, 1948, R. D. Spann purchased a new Hudson automobile, hereafter referred to as the car, from appellant at the agreed price of $3742.32. Spann paid $1110 in cash or trade-in value and executed a combination note and chattel mortgage-covering the car for the balance of the purchase price, the note being payable in 18 equal monthly installments of $146.24 each. For a valuable consideration the note and' mortgage was immediately sold and assigned to appellee by appellant without recourse as to Spann’s obligation of payment-Spann defaulted in the payment of the note and delivered the car to appellee who, after-calling upon appellant to purchase the car at a price equal to the balance due on the unpaid note of Spann, sold the car at auction sale for $1000. Appellee then sued appellant for damages in a sum equal to $1,000 less than the balance due on the unpaid note of Spann.
Appellant answered the suit with a general denial and a plea that he had sold and assigned the note and mortgage to appellee without recourse and without any contingent liability whatsoever. The case was tried before the court below without a jury and resulted in judgment for appellee in the sum of $1339.84. Appellant says the judgment should be reversed and here rendered in his favor because the facts disclosed by the evidence show that he is in no wise liable to appellee under a proper construction of the contractual relations existing between the parties.
We find no material ambiguity in the combination note and mortgage or the written assignment by which the same was transferred to appellee. The assignment was clearly without recourse against appellant. Consequently, if there is any liability from appellant to appellee in this cause the basis thereof must be found in the protection agreement and not in the assignment of the mortgage-note.
The so-called protection agreement was headed in large print “Retail Protection Agreement For Automobile Dealers,” was addressed to appellee, was signed by appellant and consisted o-f 9 numbered para[729]*729graphs as fully shown in the attached footnote.1 The agreement was not signed by appellee and its terms were not accepted unless the fact that appellee purchased contracts from appellant subsequent to October 21, 1948, constituted an acceptance thereof.
Under the three points in his brief, appellant contends in substance that the dominant [730]*730purpose of the foregoing instrument was to protect him against personal liability on all paper which he might sell and assign to appellee without recourse; that if such was not its clearly expressed purpose, it was reasonably susceptible of that construction and since it was written by appellee it should be so construed; and if that was not the true intent and meaning of the instrument as a whole, then it had no material meaning as applied to the facts of this case and should be held to be void and unenforceable as a contract. In its brief, appel-lee says: “Both the plaintiff and defendant intended that the defendant should not. be personally bound to pay the customer’s note but that in the event the automobile was recovered or repossessed the defendant should buy it back and pay the unpaid balance due, subject to the offsets and balances established under the other terms of the contract.”
In passing upon the contentions thus presented, it is the duty of this court to consider the alleged agreement in its entirety in order to ascertain from the language therein employed whether the parties thereby intended that appellant should become obligated to purchase the Hudson car under the circumstances here in evidence. If such was the general intent and leading purpose of the instrument, it should be given that effect in spite of any minor provisions of an inharmonious nature, provided such intent is not in conflict with any applicable rule of law. 10 T.J. p. 272, Sec. 159 and authorities.
We entertain considerable doubt as to whether the alleged agreement ever im-poséd' any 'binding obligation on either party to this suit. Most of its terms and provisions are so ambiguous that its true intent and meaning as a whole is vague, indefinite and uncertain. Furthermore, even though it had been signed by appellee, it did not purport to obligate appellant to sell any paper to appellee and it did not obligate ap-pellee to buy any paper that might be tendered to it by appellant. But if the instrument was sufficiently certain in its terms to have any meaning and if it ever amounted to anything more than a unilateral agreement signed by appellant without any consideration, we have no doubt whatsoever that it ought to be construed from its four corners as imposing no legal obligation on appellant to purchase the Hudson car from appellee.
' In order to impose any obligation upon appellant to purchase the car, it is unquestionably necessary to apply paragraphs 2 and 3 as a part of the protection agreement. But paragraph 1 thereof expressly provides that in certain cases “paragraphs 2 and 3 shall not apply.” What, then, is the meaning of the expression “in such cases” as contained in the last clause of the complete sentence embraced in paragraph 1 ? It will be noted that the clause immediately preceding such expression is set apart from the remainder of the sentence in which it is found by two semicolons. The antecedent clause contains two exceptions (or a double exception) relating to two types of paper which it was contemplated would be assigned without recourse and with recourse, respectively. If the expression “in such cases” was not intended to include both of the antecedent exceptions, then we think it would be more reasonable to assume that the parties thereby intended that paragraphs '2 and 3 would apply in cases where the paper was to be assigned with full recourse than to' cases where the paper was to be assigned without recourse. In our opinion, any other construction would convert [731]*731paragraph 1 into a jargon of doubletalk, would defeat the dominant purpose of the instrument as a whole in that it would deprive appellant of any effective protection against liability on paper' sold to appellee without recourse, and would change the proposed agreement into an instrument of wholesale oppression for automobile dealers rather than a protective agreement for their benefit.
The evidence shows that the mortgage-note involved in this suit did not cover any ■of the types of cars described in the second exception contained in paragraph 1 of the protection agreement, in that the Hudson car sold to Spann was not a commercial car, 'bus or taxi, and Spann was not a relative or employee of the dealer. Appellant testified to facts showing that when he sold and assigned the Spann mortgage-note to appel-lee without recourse, he did not intend thereby to obligate himself to indemnify ap-pellee against any character of loss it might sustain in the event Spann should fail to pay the note, and it was not his understanding at any time that the protection agreement was intended to impose any such obligation upon him. On the contrary, it was his understanding that the proposed agreement was intended to protect him from personal liability of any kind on all paper sold to appel-lee other than that described in the second exception contained in paragraph 1 thereof, and but for such understanding on his part he would not have signed the proposed agreement. He further testified that such understanding was induced, in part, by reading the language employed in the proposed agreement after he had fully discussed the subject matter thereof with ap-pellee’s soliciting agent.
It is well settled that a contract which is ambiguous in its terms or doubtful in its meaning as a whole should be construed most strongly against the party who drew it and selected the language therein employed. 10 T.J. p. 277, Sec. 162 and authorities ; 12 Amer Jur. p. 79S, Sec. 252 and authorities. This just and reasonable rule is grounded upon the principle that the party who prepares the contract “is responsible for ambiguities in his own expressions and has no right to induce another to contract with him on the supposition that his words mean one thing, while he hopes the court will adopt a construction by which they will mean another thing more to his advantage”. 17 C.J.S., Contracts, § 324, p. 753. The evidence -in this casé shows that appellee’s agents designed and printed the protection agreement, as well as the form of the mortgage-note and assignment here involved. Since the ingenious wording, punctuation and arrangement of this subtle document was solely the brain-child of ap-pellee’s agents, it is our opinion that its ambiguities and conflicting provisions ought to be construed most strongly in favor of appellant and against the interest and contentions of appellee. Whittington v. Cameron Compress Co., Tex.Civ.App., 268 S.W. 216; Id., Tex.Com.App., 280 S.W. 527; Magnolia Pet. Co. v. Aiken, Tex.Civ.App., 289 S.W. 152; Powers v. Sunylan Co., Tex. Com.App., 25 S.W.2d 808, pts. 8 and 9 and authorities.
To say that the parties did not intend in this transaction for appellant to have any personal liability on account of Spann’s failure to pay his note but that they did intend for him to be personally liable for the payment of an amount equal to the unpaid balance due thereon as the purchase price of the car is to insist upon a technical distinction which is without any substantial difference insofar as legal consequences are concerned. Liability in either event would have been contingent upon the same ultimate fact, viz., the failure of Spann to pay his note. The amount of liability in either event would have been substantially' the same. It is axiomatic that things equal to the same thing are equal to each other. Ap-pellee admits that appellant was not liable on account of Spann’s failure to pay his note under the assignment without recourse, and we hold that he was not liable for the payment of an amount equal to the unpaid balance due thereon as the purchase price of the car under the so-called protection agreement.
. .Therefore, the judgment appealed from is reversed and judgment is here rendered that appellee take nothing by reason of this suit.