Lively v. Robbins

39 Ala. 461

• Court: Supreme Court of Alabama
• Decided: June 15, 1864
• Status: Published

Opinion

STONE, J.

In tbe construction of contracts, tbe cardinal rule is, to effectuate, if possible, tbe intention of tbe parties; and where tbe contract appears to have been drawn up by a person unskilled in tbe use of language, greater latitude of construction is-permissible, in arriving at tbat intention. — See Shepherd’s Digest, 497, §§ 124,126. When a contract admits of two constructions, one of which will destroy, and tbe other uphold it, tbe latter construction must prevail; thus construing tbe contract most strongly against tbe party promising.—Shepherd’s Dig. 499, § 146; Livingston v. Arrington, 28 Ala. 424. Language, which is not technical in its signification, should be construed in its popular sense.

[2.] Tbe phrase, “if tbe conscrip should take J. B. Bobbins,” is certainly not very definite in its meaning. We think, however, tbat under tbe rules above laid down, tbe circuit court erred in its construction of tbe contract declared on. Tbe parties could not have meant, “if tbe conscript law take J. B. Bobbins,” then tbe note to be void. Tbe “conscript law” bad ah’eady taken bim, and be was purchasing bis exemption from its operation. A more reasonable solution of tbe imperfect language employed is, that the parties bad in view tbe actual placing of Mr. Bobbins in tbe conscript service. Conscription was wbat tbe parties were looking to, and providing against; and conscription, in its popular sense, means a finished, complete enrollment of tbe soldier in tbe public service; not simply tbe extension of tbe law so as to embrace bim. Mr. Bobbins bad been enrolled as a conscript, and was in camps; and be sought to obtain an exemption, by putting in a substitute. He paid bis money, and executed bis note, that be might get out of tbe conscript service, and remain out. Tbe unpaid part of tbe consideration was made conditional; not to be paid, if Mr. Bobbins was placed in tbe conscript service. He stipulated tbe event in which be was not to pay, and that event has not happened. He was not taken by tbe conscript officer, or tbe conscription — was not placed in tbe conscript service. He obtained a discharge from tbe service, by means of tbe substitute be put in, and be was not placed back in tbe service. Tbe contingency on which tbe contract was to become invahd, has not happened.

Beversed and remanded.

PHELAN, J.

I differ from tbe majority of tbe court upon tbe construction given to tbe note sued on, and concur with tbe judge below, in bolding that tbe words “ if tbe conscrip should take J. B. Bobbins,” &c., should be construed to mean, if the conscript law should take — that is, indude, or malee liable. I am of opinion tbe judgment below should be affirmed.