Sinclair v. . Hicks , 116 N.C. 606 ( 1895 )

The award of the arbitrators declares that the plaintiff is entitled to receive of Gossler Co., and R. W. Hicks, the sum of $2,500, in full of all claims and demands whatever, and it is agreed that by a subsequent arrangement the defendant, the Consolidated Lumber Company, became responsible for the payment of the said amount awarded to the rightful claimant, and has (612) paid all except the sum of $625, evidenced by a note indorsed by the defendant R. W. Hicks and which he contends was not due to the plaintiff's assignor, Williams, under a contract (marked Exhibit "A") entered into by said Williams contemporaneously with the signing of another agreement, which is to be construed with it, and in which, in addition to the mutual stipulations to submit to arbitration, Williams contracted to assign a sufficient portion of a debt secured to him by a certain mortgage executed by W. J. McDiarmid Bro., to satisfy a debt of $2,765.69 due to R. W. Hicks from Williams individually. Williams had been appointed assignee by McDiarmid Bro., and had subsequently executed an assignment to plaintiff for the benefit of his own creditors. By the terms of the last named contract, such sum as should be awarded to Williams was to be secured by four notes in equal amount, three of which were to be indorsed by Gossler and one by R. W. Hicks.

It is contended for the defendants that Williams agreed to hold Hicks harmless in advance as to any apparent liability he might incur by indorsing a note for one-fourth of the amount of the award ($625), which is the subject of the controversy, to Williams. The language of the concluding portion of the instrument to which it is insisted this construction must be given, is as follows: "Now, therefore, in consideration of the premises and the further consideration of $10, in hand paid by R. W. Hicks to M. McD. Williams, the receipt of which is hereby acknowledged, the said Williams agrees, covenants and promises with and to said Hicks that in any event said $2,765.69 shall be without scale or offset of any kind, and that he will protect and save said Hicks harmless as to any scale or offset on said sum, and that any note or other paper signed or indorsed by Hicks upon the coming in of the award of the arbitrators or by reason of any claims (613) against said assigned property, contracted by Williams as assignee of McDiarmid Bro., and agent of the creditors under said contract of December, 1890. (Signed by M. McD. Williams, seal, and witnessed by H. McD. Robinson.)"

It is admitted that the debt of $2,765.69 has been realized by Hicks out of the proceeds of the claim against McDiarmid Bro., which had been assigned to him by Williams, and therefore the contract to hold Hicks harmless as to that, has been performed. Whatever the parties may have intended for the draftsman to incorporate in reference to the note to be indorsed by Hicks, it is evident that in the hurry of preparing to embark on a train, a sentence was left incomplete, and the latter part of it, as it was written, is not sufficient to limit his liability in any way. Courts may decide between one of two possible constructions of ambiguous terms, and may resort sometimes to pertinent extrinsic evidence to arrive at a proper interpretation. But they are not at liberty to supply a supposed ellipsis in order to give legal effect to language that, without addition or alteration, would be meaningless.

It is the duty of the parties to express intelligibly, and it is the office of the court to enforce, when so expressed, the intent of two or more minds that constitutes the contract. The judgment of the court below is

Affirmed.

(614)