McPherson v. Harris

BRICKELL, C. J.— The case presents but a single question—the true construction of the contract entered into o.n the first day of January, 1867, by Jacob Perry, William McPherson, Moses Hamilton and William G. McPherson. In the construction of written or verbal contracts, the great object is to ascertain, and if possible effectuate the intention of the parties. In ascertaining such intention, the court must place itself in the situation of the contracting parties at the time of making the contract, and consider their obvious design as to the purposes to be accomplished.— Pollard v. Maddox, 28 Ala. 321; Bryant v. Bryant, 35 Ala. 315. When this contract was made, there were several suits pending between the parties, and the primary purpose was to settle finally the litigation they involved. The suit in which Perry was plaintiff had been commenced by, or an attachment had been sued out in aid of it—which is the fact, is not certainly shown. The attachment had been levied on a stock of goods and several mules as the property of William McPherson. Hamilton and William G. McPherson were not parties to the attachment suit, but claimants of the property levied on, and had sued the sheriff and Perry for its wrongful taking or conversion. “Now for the purpose of settling said several suits,” are the words of the contract, “the parties hereto agree that said Jacob Perry release said levy on said goods, and give to said Hamilton •and McPherson an order to the sheriff requiring him to 624 return to them the said goods; and the said mules having been sold by said sheriff, the said Perry releases to, and gives an order to said sheriff requiring the proceeds of said sale of the said mules to be paid to said Hamilton.” The levy on the goods was released—the order given for their restoration to McPherson and Hamilton, and an order given to Hamilton,, for the proceeds of the sale of the mules. The sheriff failed to deliver all the goods on which he had levied, and retained' from the proceeds of the sale of the mules, costs and expenses incurred in taking care and making sale of them, and costs and expenses incurred in taking care of the goods. It is insisted Perry is liable for the goods not returned, and for so much of the proceeds of the sale of the mules as the sheriff retained. We can not concur in this view of the contract. There is no word in it, which imports that Perry was to become the guarantor for the good conduct of the sheriff, past, present or future. Nor does it import more than that he would release whatever of claim he had acquired by the levy of the attachment, leaving the sheriff, so far as he was concerned without authority to retain possession of the goods, or the proceeds of the sale of the mules. The levy of the attachment created a lien, which Perry could control, and release or enforce. Withdrawal of the goods, and the proceeds of the sale of the mules from this lien, restoring McPherson and Hamilton to the right to control them, and to possession of them, so far as the right was affected by the lien was all that Perry bound himself to do, and all it was intended he should do. This was to be accomplished by an order to the sheriff to return the goods, and pay over the proceeds of the sale. When the order was given, there was full compliance by Perry with the stipulations of the contract on his part. The parties must have-' known costs had been incurred in the keeping of the goods, and in the keeping and sale of the mules. If it had been, intended these costs should be paid by Perry, there would' have been some stipulation to that effect. They would have followed ordinarily the event of the suit he had instituted. A right to continue this suit against Sawyer, one of the defendants to it, who could not be charged with them Perry expressly retains. The only duty imposed on him, is the release of the levy, and an order to the sheriff for the restoration of the goods, and the payment of the proceeds of the ■ sale of the mules. Now it is not consistent with the manifest purposes of the contract to quiet the controversy, to suppose the parties intended that the costs they knew hads 625 been incurred should remain unsettled. Nor is it legitimate when in clear and unambiguous terms the obligation of Perry is expressed, to imply a further and larger obligation. We think Perry fully complied with the contract on his part when the levy was released, and the orders given to the sheriff. If the sheriff had converted, or failed to deliver any of the goods seized, it was his default, for which he, and not Perry was answerable to McPherson and Hamilton. If he retained for costs, the parties must have contemplated such retainer when the contract was made, and have intended that the order of Perry should be regarded as a direction and authority to pay over, only what Perry could have controlled or received—the balance of the proceeds of sale, after paying such costs. Adopting this construction of the contract, there is no error in the record of which the appellants can complain, and the judgment is affirmed.