Eau Claire Grocer Co. v. Hubbard

Maeshall, J. The maxim, “ut res magis valeat guampe-reat,” — the instrument in question shall rather be made available than suffered to fail,— applies in construing a deed •of assignment for the benefit of creditors where the language thereof is of doubtful meaning. If the deed will admit of two meanings the court is permitted, when called upon for its judicial construction, to consider all the circumstances of its execution,0the situation of the parties, the necessities that called the instrument into existence, the motives that actuated its makers, the reasonable probabilities as to what would ordinarily be done by persons circumstanced as such parties were, and all the facts and circumstances which led up to and characterized the transaction, in determining just what was intended thereby, to the end that a construction may be adopted that will give effect to such intention if it •can be done without doing violence to the rules of language •or of law, rather than that the instrument should fail en-. tirely. In short, the ordinary rules governing the construction of contracts between parties apply, and with peculiar [664] force where the manifest legislative policy points that way. Knapp v. McGowan, 96 N. Y. 75; Townsend v. Stearns, 32 N. Y. 209; Crook, v. Rindskopf, 105 N. Y. 476; Bank of Mobile v. Dunn, 67 Ala. 381; Burrill, Assignments, § 285. Applying the foregoing to the facts of this case, no serious-difficulty is encountered in arriving at a conclusion as to the-proper construction of the instrument in question. If we-say the intention of the parties was to make an individual assignment, it would probably follow that the instrument would fail entirely for want of a proper bond, required by statute. Therefore, that construction should be rejected if the instrument will reasonably admit of another which will uphold it. This rule should be given all reasonable latitude,, since the legislative policy of this state, as evidenced by recent legislation on the subject, is to favor and uphold assignments for the benefit of creditors, rather than otherwise. As before stated, in effect, where the trend of legislation is such as to show a manifest purpose to secure an equal distribution of the property of insolvents, whenever they, in-good faith, make a conveyance of all their property with that intention, the courts, so far as possible, should carry out such legislative policy, and supplement it by the most liberal construction of deeds of assignment they will reasonably bear, to the end that they may be maintained instead of defeated. Cunningham v. Norton, 125 U. S. 77. Looking at the circumstances of the transaction in question, we see that the parties were in business at Eleva as the firm of Gilbert & Ilallenger; that they had firm property there, and as such were indebted to divers persons in divers sums of money, which they were unable to pay; and that all -the circumstances, at the time the instrument was-made, point to a necessity for a firm assignment and none-other. Further, it appears that the deed describes the parties as of the firm of Gilbert & Ilallenger; that there was no occasion for the use of the firm name as mere descriptio> [665] personas; that the only occasion, for its use was to show the-character of the assignment itself; that the indebtedness, which the parties were not able to pay was described by words appropriate to a joint indebtedness; that the. property assigned was described bjr words appropriate to joint, property; that the list of creditors to be filed was referred to as “those for whom the assignment was made,” and the-inventory to be filed was referred to as particularly describing the property assigned; that the list of creditors and inventory were filed and became, to all intents and purposes,, a part of the deed; that they show- only firm creditors and: firm property; that the language of the bond filed with the-deed was appropriate to an assignment by the firm of Gilbert & ITallenger; and that the affidavit as to the nominal value of the assets assigned, upon which the bond was based,, referred only to firm property. It would seem that we are-hardly required, in view of the foregoing, to resort to very liberal rules of construction, to the end that the assignment be upheld rather than that it fail, and in order to reach the-conclusion that a firm assignment was intended and none other. All of the circumstances and the wording of the-papers point so clearly to the purpose of the parties to make a firm assignment, and that only, as to really leave little-doubt, if any, on the question. Any other construction could hardly be reached without doing violence to the language used by the parties, when viewed in the light of the-res gestee. The language of the deed, in many particulars, in fact in all essentials, is much like that in McNair v. Rewey, 62 Vis. 167, where this court held that it was a firm assignment, and clearly so. But looking at the instrument, independent of precedents, and testing it by the well established rules of construction to which we have referred, the-decision of the trial court was clearly right. In Williams v. Hadley, 21 Kan. 350, and Von Wettberg v. Carson, 44 Conn. 287, confidently cited by appellant, the construction given [666] was in aid of the assignments. If the circumstances bad been reversed, so that such a construction would have defeated the assignments, especially in the face of a manifest legislative policy to favor such dispositions of property by the voluntary acts of insolvents, whether the same results would have been reached is by no means certain. The cases are not considered in conflict with the decision of this case. By the Court.— The judgment of the circuit court is affirmed.