King v. . Davis

ClaricsoN, J. On 30 December, 1922, the copartnership of L. W. Davis & Co., had on deposit with the Commercial National Bank of 'Wilmington, N. C., the sum of $6,306.90. On that date the bank was closed by order of the Comptroller of the Currency. On 1 February, 1923, a receiver for the bank was appointed. Plaintiff, and defendant dissolved copartnership 14 March, 1923. At the time the. bank was closed, defendant was individually indebted to the bank in the sum of $2,500. The receiver charged the individual indebtedness of defendant against the $6,306.90, leaving to the credit of the partnership the sum of $3,806.90. On 1 August, 1924, the receiver paid a 10% dividend to depositors — to these depositors $380.69. Defendant gave plaintiff of the 1 amount $210.23. Plaintiff contends that, under the dissolution agreement, the settlement should be as follows: He was entitled to % of $2,500.00.$ 833.33 He was entitled to % of 380.69. 126.89 $ 960.22 Defendant paid him. 210.23 Defendant owes plaintiff amount sued for.$ 749.99 *741 Defendant contends tbe money in bank in tbe joint names was .$6,306.90 His portion was %. 4,204.60 Plaintiff’s portion Ys. 2,102.30 $6,306.90 Tbat from bis portion of bis individual note should be deducted. 2,500.00 'Leaving bis portion.$1,704.60 Plaintiff’s portion. 2,102.30 $3,806.90 Tbe dividend, 10%, received was $380.69. Plaintiff’s portion be paid bim was $210.23, and tbis was all be was entitled to receive. Tbis is tbe controversy for us to determine. Botb parties, without citing any case like it to guide us, have left tbe matter for tbe Court like a “feather on tbe water.” Botb reason, as they contend, on general principles and come to opposite conclusions. “Tbe construction of a contract, when in writing or agreed upon, is a matter of law for tbe courts.” Barkley v. Realty Co., 170 N. C., p. 482. “‘If a contract is expressed in plain and unambiguous language, neither courts nor juries may disregard it and by construction or otherwise substitute a new contract in tbe place of tbat deliberately made by tbe parties.’ Engine Co. v. Paschal, 151 N. C., 27; 7 A. & E. Enc., 118; Dwight v. Ins. Co., 103 N. Y., 347.” Ollis v. Furniture Co., 173 N. C., 546. In those written contracts which are sufficiently ambiguous or complex 'to require construction, tbe general rule is tbat tbe intention of tbe parties is tbe polar star. Tbis can be gathered from tbe language of tbe entire instrument, tbe subject-matter, setting of tbe parties, tbe surrounding and attendant circumstances and tbe object they bad in view. Tbe same light which tbe parties possessed when tbe contract was made. Ordinarily, in arriving at tbe intent, words are used in tbe meaning generally accepted. If tbe words employed are capable of more than one meaning, tbe meaning to be given is tbat which it is apparent tbe parties intended them to have. 4 Page on tbe Law of Contracts, sec. 2020 et seq.; R. R. v. R. R., 147 N. C., 382; Simmons v. Groom, 167 N. C., 271; Lewis v. May, 173 N. C., 100; Ollis v. Furniture Co., supra; Miller v. Green, 183 N. C., 652; McGullen v. Daughtry, ante, 215. Applying these accepted rules of construction, tbe parties were partners, tbe plaintiff having one-third interest and tbe defendant two-tbirds. *742 In tbe dissolution, plaintiff sold all tbe tangible property to tbe defendant and bé assumed all debts. Tbe cboses in action were to be collected by either and tbe clear intention was that tbe division of tbe cboses in action should be tbe same as before dissolution. "When tbe question of tbe deposit in bank arose, tbe writing now in controversy, tbe idea was tbe same — •“% thereof to James S. King and % thereof to L. W. Davis.” When tbe dissolution took place, tbe bank was in tbe bands of tbe receiver. Defendant owed tbe bank $2,500. He was entitled to two-thirds of tbe $6,306.90 — $4,204.60. Tbe receiver allowed tbe defendant to set off bis share in tbe partnership account against bis individual note. It did not and could not affect tbe interest of plaintiff’s one-third in tbe fund. Tbe language in tbe agreement in controversy “all dividends and payments on account of said deposit shall be divided,” etc. Tbe set-off against defendant’s two-tbirds portion of tbe fund was in no sense a dividend or payment under tbe contract clause in controversy. “Set-off. A counter-claim or cross-demand; a claim or demand which tbe defendant in an action sets off against tbe claim of tbe plaintiff, as being bis due, whereby be may'extinguish tbe plaintiff’s demand, either in whole or in part, according to tbe amount of tbe set-off.” Black’s Law Die. (2 ed.), p. 1079, and cases cited. Tbe decision in Blount v. Windley, 68 N. C., 1, was on appeal to tbe Supreme Court of U. S., affirmed' — 95 U. S., 173 (L. Ed.), 424. Mr. Justice Miller says: “Tbe idea of set-off is not tbe same as payment. It is doctrine of bringing into tbe presence of each other tbe obligations of A. to B. and of B. to A., and by tbe judicial action of tbe court make each obligation extinguish tbe other.” 24 R. C. L., p. 796; Putnam v. Russell, 17 Vt., 54; 42 Am. Dec., 478. After a careful consideration of this case, we are of tbe opinion that tbe judgment of tbe court below should be Affirmed.