Edwards v. Jefferson Standard Life Insurance

AlleN, J. In the construction of contracts “technical rules are not so regarded as the real meaning of the parties, where it can be gathered from the instrument itself; and to arrive at the intention, sentences may be transposed and insensible words, or such as have no distinct meaning, may be disregarded.” (Killian v. Harshaw, 29 N. C., 498; McIntosh on Contracts, (2 Ed.), 553), and of two construcions, that will be adopted which upholds the instrument, as it is presumed “when parties make an instrument the intention is that it shall be effectual and not nugatory.” Hunter v. Anthony, 53 N. C., 385. Words are to be taken niost strongly against the party using them, and facts existing at the time of making a contract may be used as a “key to its meaning.” Richards v. Schlegelmich, 65 N. C., 152. Applying these rules of construction, there is little difficulty in arriving at the intention of the parties. The assignment says distinctly that it is executed for the purpose of securing any indebtedness to the bank existing at the death of the debtor, and the debtor must be both of those who executed the assignment, or one of them. There is good reason for holding that it was intended to secure the indebtedness of both, rather than let it fail altogether, because, while the expressions “I may owe,” “at my death” are used, the assignors also use the singular pronoun to include both of the makers of the assignment. They say, “I, W. J. Edwards and K. E. Edwards.” When, however we consider the circumstances surrounding the execution of the assignment, that W. J. Edwards is described in the policy as the insured and the plaintiff as beneficiary, that W. J. Edwards was a railroad promoter and borrowing money and his wife not, and that he was indebted to the bank when the assignment was made and at his death, and that his wife owed nothing, it is reasonably certain that it was the purpose of the parties to secure the indebtedness of the husband, W. J. Edwards, .and we so hold. *617 Nor do we think the plaintiff, one of the makers of the assignment, is entitled to contribution as against the indorsers on the notes, as this equity only arises between persons standing in the same situation. Moore v. Moore, 11 N. C., 358. The right to contribution results from the maxim that equality is equity, and is enforced upon the principle that those engaged in a common hazard should bear equally any loss. Dawson v. Pettway, 20 N. C., 351. It exists between cosureties, who are bound to a common liability, and if there is no common liability there is no foundation for the equity. Brandt Guaranty and Suretyship, secs. 221-224; Eaton on Equity, 508-9. As said in Moore v. Moore, 11 N. C., 360, it is “a principle of natural equity that equality is equity among persons standing in the same situation.” If common liability, common hazard, and similarity or identity of situation is the foundation of the equity, it follows that the plaintiff, admitting that she is a surety, is not entitled to contribution as against the defendants, indorsers upon the notes. A surety is a maker, is primarily liable for the payment of the debt, and is not entitled to notice of dishonor (Rouse v. Wooten, 140 N. C., 557), while the indorser is liable conditionally, and does not undertake to pay absolutely, but only after notice of dishonor (Sykes v. Everett, 167 N. C., 608), and is entitled to notice of dishonor. Perry v. Taylor, 148 N. C., 362. The surety and the indorser are not in the same situation, nor is there a liability or hazard common to both. A case directly in point is Smith v. Smith, 16 N. C., 173, in which the headnote, fully sustained by the opinion, is as follows: “Where A., as surety, signed the note of B., payable to 0., and it was indorsed by C. at the request and for the accommodation of B., there being no contract between A. and 0. whereby they agree to become co-sureties of B., it was held that A. had no right to contribution from 0.” Again, the Court says in Le Duc v. Butler, 112 N. C., 461, which is affirmed in Hauser v. Fayssoux, 168 N. C., 1: “A clear distinction is marked in all of these cases, except possibly the last, between the surety and the indorser in their relation to each other. While to the holder their liability was the same, as to each other they were essentially different. If the indorser should pay the note he might still erase the in-dorsement and sue the surety and maker or the joint makers upon the note. If, however, the surety should pay the note, he could not call upon the indorser as a cosurety for contribution, but his payment operated as a discharge of the the indorser from all liability, although by force of the statute he was liable as surety.” *618 We bare dealt with tbe ease, conceding tbe correctness of tbe position of tbe plaintiff, that sbe became a surety of tbe husband by transferring ber property to secure bis debt, but while tbe wife, under such conditions, is frequently referred to in the decisions as a surety, sbe does not assume tbe obligations and liabilities of tbe ordinary surety, and cannot be classed with indorsers. Sbe has not promised to pay tbe debt absolutely or conditionally, and no judgment can be recovered against ber individually. Sbe has simply transferred ber property to secure ber husband’s debt, and ber property is treated as a surety. (Hinton v. Greenleaf, 113 N. C., 7), and to tbe extent it is used in payment of tbe debt sbe becomes a creditor of tbe husband. We conclude that there is no error. Affirmed.