Heatherly v. Bank

Green, Judge. The principal question involved in this case is: What is the true construction of the agreement between James M. Woodford and the trustees of the Farmers’ Bank of Philippi, 0. F. Teter and G. W. Gale, Jr., the cashier of the bank, dated March 27,1886, a full copy of which appears in the statement of this cause ? It is true that the contract is on its face ambiguous; but it does not seem to me to be difficult to ascertain its meaning, and the real intention of the parties, if we apply to it some well-settled rules of construction which are based on common sense. One of these rules is that when the language of a written contract is susceptible of more than one interpretation, that is to say, is ou its face ambiguous, the courts will look at the surrounding circumstances existing when the contract was made, at the situation of the parties, and the subject-matter of the contract, and will call in aid the acts done by the parties under it, as affording a clue to the intention of the parties. See Titchenell v. Jackson, 26 W. Va. 460, point 1 of syllabus, and page 469; Crislip v. Cain, 19 W. Va., point 13 of syllabus, pp. 441-483; Hurst v. Hurst, 7 W. Va. 299. When such a contract is to be construed, another well-settled rule based on common sense is, that the whole contract should be considered in determining the meaning of any or all its parts. The reason of this ruléis obvious. The same parties make all the contract, and may be supposed to have had the same purpose and object in view in all of it; and, if this purpose is more clear and certain in some parts than in others, those which are obscure may be illustrated by the light of the others. See 2 Pars. Cont. (6th Ed.) side pages 501-503, bottom pages 648,649, and notes, with many authorities cited. By this contract the bank or its trustees were to pay for the personal property of Woodford certain fixed prices, and [78] for the stock of goods their prime cost, to be ascertained by an inventory to be taken at once. This inventory was taken at once, and the whole price to be paid for all of the personal property, — sixteen cattle, two horses, and these goods, — thus ascertained, was according to the statement of the bill $3,895.00, and according to the statement in the answer of the bank $3,900.00. They differ but very little, and we will assume, as most favorable to the plaintiff, that the price to be paid or settled for all the personal property, goods, cattle, and horses was $3,900.00. But besides this personal property, — the price to be paid for or settled for it thus fixed — there was also by the agreement transferred or assigned to the bank or its trustees all the notes which Woodford had taken of his customers for goods previously sold to them by him, and also all his open accounts against his customers at this store. The notes which Woodford had previously taken of his store customers were to be transferred and delivered to the bank or its trustees ; and they were to collect them. But Woodford agreed without compensation, to settle with his customers these open store-accounts, and take from them notes.payable to the bank; or he would collect money on them, and at once pay it over to the bank; and also agreed to feed the 16 head of cattle, without charge, until they could be sold by the trustees. There was no attempt to inventory these choses in action, or to ascertain their value in any way ; but the bank or its trustees were not to account for any of them which were not collected, unless they were lost by its negligence. This distinctly appears from the last clause in this agreement. One part of this agreement does say that the trustees of‘ the bank agree to pay Woodford for said goods, notes, and accounts; but the manner in which these payments were to be made is distinctly shown by a subsequent part of the agreement, — by which. the bank, through these trustees, agreed first to assume, pay off, and discharge all execution-liens that were at this time [ March 27,1886,] outstanding in the hands of any sheriff or constable of that [Barbour] county, which should be paid in full; next, that said bank, acting by its trustees, shall pay itself all judgments and debts and lia■bilities due from Woodford to the bank ; and lastly, that the [79] balance that may be coming to said Woodford shall be paid out by said trustees or said bank to such of Woodford’s creditors as he may direct. Now, this clause of the agreement was obviously not inserted for the purpose of fixing the amount to be paid by the trustees or the bank for the transfer of the goods, cattle, horses, and store-accounts, and notes by Woodford to the bank or its trustees, that is, $3,900.00, and so much more as could be collected by the use of diligence by these trustees or the bank out of these notes and open accounts; for this, as I have shown, had been definitely fixed by other parts of this agreement. This clause was obviously inserted to show how this amount agreed to be paid for the transfer of this personal property and these choses in action to the bank or its trustees was to be paid; that is — first, on all execution-liens on the property and choses in action transferred; secondly, on the judgment-debts and liabilities of Woodford, the assignor, to the bank; and, lastly, the balance, if any, on such debts of Woodford as he should direct. It is obvious, too, that in this second class of Woodford’s debts to be paid — the debts, liabilities, and judgments due from Woodford to the bank — there'is no difference made between them, whether due from Woodford as principal or as security. All his liabilities to the bank stand on the same footing, and are therefore to be paid pro rata according to the amount, severally, of these debts and liabilities ; and of course the judgment for $1,781.80 and interest and costs against Woodford, the plaintiff, and others is included in this class. ‘ As the clause only designates the manner in which a sum to be paid for this transfer of personal property and choses in action is to be paid, if, in paying it in this manner, the whole amount of the principal to be paid for this personal property and choses in action is exhausted before all of this second class are paid, this fund must be paid to them pro rata; and, if it fails to pay them off in full, then, of course, the bank would still have a right to collect the balance of Woodford, or of any of his sureties. While these prior execution-liens on all this property, both personal and choses in action, which were to be first paid, amounted on their face to $2,536.17, and the answer of [80] the bank admits that the amount actually due on them on March 27, 1886, was satisfied by the payment by it of $2,655.67, yet when these payments were made by the bank or its trustees does not appear from the. answer; so that, if this answer was to be regarded as evidence for the bank — ' which it is not — we still could not tell what amount was actually due on these prior executions on the 27th of March, 1886. It was very probably $2,655.67. The $3,900.00 to be paid for the personal property alone, exclusive of what was to be paid for the transfer of the choses in action, would pay off these prior executions and liens, leaving, according to the statement of the bank in its answer, some $1,350.00, though it probably exceeded this amount, for distribution among the second class, the judgment-debts and liabilities of Woodford to the bank. According to the bill, and as admitted by the answer, they amounted on March 27,1886, to about $6,073.00; and the ratable proportion which was to be applied to this judgment against Woodford, the plaintiff, and others of this $1,350.00, if this was all there was for distribution, would amount to some $400.00; and in addition to this there should be credited on the judgment its ratable proportion of whatever could by diligence be collected by the bank or its trustees out of the notes and open accounts transferred to the bank or its trustees by Woodford. What this amount is, the record does not show. The bill claims that this sum should be more than $8,500.00, which, if true, would pay off this judgment in favor of the bank against the plaintiff, Woodford, and all others, as well as all the claims and liabilities of Woodford to the bank, and leave considerable balance to be paid to other creditors of Woodford as he might direct. But Woodford, in his answer, states these choses in action transferred amounted to a little over $2,000.00. What portion of them could by diligence be collected he does not state; while the bank, in its answer, states that only about $140.00 of them has been collected, and nothing more, or very little more, can be realized from them. Neither the bill nor these answers, they having all been replied to generally, were evidence on the hearing of this cause. The decree of the Circuit Court of July 22,1887, so far as [81] it construed this agreement of March 27, 1886, as not operating as a payment or extinguishment of the judgment in the bill mentioned, is correct; but 'in so far as it dissolved the injunction granted to stay the collection of said judgment, and decreed that the defendants in said j udgment do pay to the Farmers’ Bank of Philippi $1,981.74, with interest thereon from July 22, 1887, being the amount of the principal, interest, and costs due on said judgment on the 81st of January, 1887, when the injunction took effect, with damages thereon, in lieu of interest at the rate of 10 per cent, per annum until July 22, 1887, and which gave leave to the Farmers’ Bank of Philippi to sue out execution therefor against said judgment debtors, with interest thereon from July 22, 1887, and the cost of this injunction, is erroneous. For, as I have shown, at that very time the bank, as shown by its answer, had some $400.00 in its hands, which it was bound to apply and credit on this judgment, and it probably had considerable more than this amount, but how much more must depend on the settlement of accounts of the said trustees of the Farmers’ Bank of Philippi, and of the Farmers’ Bank itself, showing what amount of assets the bank, or the trustees of said bank, have collected, or ought to have collected, of the assets transferred to the said trustees of the bank,- or the bank itself, under this agreement of March 27, 1886, and how the same has been applied, and how much is applicable to'the payment of the judgment in favor .of said bank against said Woodford, the plaintiff, and others named in the bill. And in making this settlement no commission out of the funds transferred to said bank or its trustees by said Woodford by the agreement of March 27, 1886, shall be allowed; said agreement not having stipulated that any commission or compensation should be claimed for executing the trust, but on its face showing that no charge of this description was expected to be made. The decree of July 22,1887, must therefore be set aside, reversed, and annulled, and the appellant must recover of the appellee, the Farmers’ Bank of Philippi, his costs in this Court expended; and this Court must enter such a decree as will carry out the views above expressed, and this cause must be remanded to the Circuit Court of Barbour to be fur82 tlier proceeded with according to the principles laid down in this opinion, and, further, according to the principles governing co arts of equity. RevResed. Remanded.