Emmeluth v. Home Benefit Ass'n

Barnard, P. J. In the construction of contracts the following principle applies that the interest of the parties will govern in those cases where there, is more than one party on either side. If the terms of the contract are apparently joint and the interest .several the contract will be construed to be several and vice versa. Volume 1, Addison on Contracts, p. 79. In the present case, in regard to the construction of the •certificate of membership or policy of insurance set forth in the complaint, it is clearly for the interest of the persons, not exceeding ten in number, who are to receive the amount of $5,000 mentioned in said certificate of membership. We also find in Addison on Contracts that in the construction of a contract of this nature if one sum in solido is not to be paid in the first instance and afterwards divided, but separate and independent payments are to be made to each, then the interests are separate. Addison on Contracts, Vol. 1, p. 80. In the present case under consideration a reasonable construction of the certificate of membership set forth in the complaint would lead to the conclusion that those members whose certificates of membership were in force at the time of the death of the party, in reference to whose death this action is brought, would have a right to receive directly from the company the sums to which they were respectively entitled, there being no provision made for the payment of the sum in one installment and its subsequent division among those entitled thereto. As to that ground of demurrer which relates to the fact that two members who were entitled, at the time of death, to a portion of" the funds have withdrawn subsequent thereto, this is no valid objection to the complaint because it only affects the amount to which the plaintiff is entitled, and not the right of action which remains valid and in full force. Moreover, from the terms of the present policy or certificate, it is by no means clear that the undertaking to pay the $5,000 is a joint undertaking, and furthermore [657] -covenants are to be construed according to their spirit and intent, and where, from the subject-matter of the covenant, it is the evident intent of the parties that they should be taken distributively, they may be-so taken, although there are no express words of severalty. The intention of the parties must control where the exact nature of the covenant is in doubt. Ludlow v. McCrea, 1 Wend., 228; Quackenboss v. Lansing, 6 Johns., 49. The order overruling the demurrer and judgment thereon should be affirmed, with costs. Pratt, J., concurs; Dykman, J., not sitting.