McDonnell v. Jordan

TYSON, J. A single question is presented for our determination by the record in this case :• — a correct construction of the written contract between the parties made on exhibit to the complaint. In construing 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 purpose to be accomplished.” — McPherson v. Harris, 59 Ala. 620. “Contracts must be interpreted in the light of sur [285] rounding circumstances. The occasion which gives rise to them, the relative position of the parties and their obvious design as to the objects to be accomplished, must be looked at, in order to arrive at their true meaning and to enable the court to carry out their intention, if lawful. It often happens that parties use very inapt expressions in drafting their instruments, yet, their true meaning and intention may be fairly gathered, from the instrument, when considered.” It is often the case that it is only by the aid of parol evidence that courts can ascertain what were the circumstances under which a contract was made; what was the relation of the parties and what was in their mutual knowledge. — McGhee v. Alexander, 104 Ala. 121. It is entirely apparent from the contract that the object sought to be accomplished was a settlement of a controversy between the parties which had arisen over the will of one Fennell which had been propounded for probate in the probate court of Madison county and contested by the plaintiff. It is also equally clear that it was the intention of the parties not only to agree, as to how the property of the testatrix was to be divided between them, but also by whom the costs of the contest of the validity of the will should be paid. This is manifest from those provisions of the contract which provides that plaintiff was to receive |13,000.00 of the cash assets of the estate and “no court costs or other charges arising from or connected with any proceedings concerning the contest or petition to probate the will shall attach to or be paid” by her, and that defendant was to have the balance of the property belonging to the estate, he “to pay all the court costs, lawful debts of the estate,” etc. In other words, the obvious purpose of the contract was to eliminate the contest of the will, to admit it to probate, to divide the estate between the parties and to make provisions for the payment of the costs which had been incurred in the contest proceedings. But it is said that the payment of the only costs provided for by the contract were those incurred in the probate court. Is this true? We think not. [286] U appears from the averments of the complaint that after the contest had been inaugurated in the probate court, that upon petition of defendant the cause was removed to the circuit court of the United States and from that court appealed to the circuit court of appeals. Of necessity, costs accrued in those courts for which one or the other of the parties became liable. This was known to both of them at the time the contract sued upon was entered into. It is true the complaint does not aver that the cause had been determined by the Federal court Avhen the contract Avas made, but the contract sufficiently shows this. It refers to the contest as uoav pending in the probate coprt, provides for its withdrawal and the admission of the will to probate in that court, which was done under the contract. This, of course, could not have been accomplished with the contest pending in the Federal court. .So, then, at the time the cóntract was entered into there were costs incurred in the Federal court for which either the plaintiff or defendant, or both, were liable. And in view of the provisions of the contract quoted above, and the object sought to be accomplished, we think that it was the intention of the parties that the payment of those costs should be provided for and that they Avere provided for. In other Avords, we entertain the opinion that defendant’s promise to “pay all the costs” covers the costs in the Federal court. But it is said that since plaintiff paid those costs before the making of the contract, that defendant did not undertake to reimburse her; that it Avas only contemplated that she should be paid “the sum of $13,000.00, to in chide the Alabama bonds belonging to the estate.” If plaintiff, as-averred, paid the sum of money as costs, and they were properly taxable as such, Ave apprehend that the mere fact that she is the owner of the claim for costs, instead of the officers of the court- in Avhich it accrued, can make no possible difference. ITer ownership of it, in view of defendant’s promise to pay all court costs, does not, in our opinion, destroy or impair the value and char [287] acter of the claim paid by her so as to prevent its inclusion in the word “costs” as used in the contract. Nor do we think that the provision of the contract for the payment to plaintiff of $13,000.00 of the assets of the estate precludes the plaintiff from asserting the demand here sued upon. The payment was to be made by the special administration of the estate. The court costs were to be paid by defendant personally. Furthermore, we think that it was the intention of the parties that the $13,000.00 was to be net to the party who accepted that term of the proposition, free of all costs or other charges, and that the party accepting the proposition to take the remainder of the estate was to bear all the burdens incident to the litigation, such as court costs, etc., etc. Reversed and remanded. McClellan, C.J., Simpson and Anderson, J.J., concurring.