McGeever v. Terre Haute Brewing Co. , 201 Ala. 290 ( 1918 )

The conclusion that error underlies the judgment results from the ruling of the trial court in sustaining plaintiff's demurrer to plea 10 as amended, and this result is contingent upon the construction taken of the before-quoted feature of the contract between Siegel and the plaintiff; more particularly upon the interpretation accorded the phrase, italicized in the quotation ante, "this, however, can be altered or changed by consent of the first party." The elaborate argument in support of the plaintiff's application for rehearing has been accorded full consideration. The court remains satisfied with the views announced in the original opinion. Without assuming to restate the argument, it will suffice to note that the argument against the sufficiency of the amended plea, when assailed by appropriate demurrer, omits to take due account of this phrase, "but upon the determination of this contract by consent or otherwise, all sums due and owing said first party, shall be immediately paid." The word but, in that phrase, is employed in "an adversative sense with reference to what precedes," thus interposing between the preceding provisions stipulating for a limited line of credit and the phrase, "this, however, can be altered or changed by consent of the first party," a thought in opposition to that expressed in defining the limited line of credit, and evincing, unmistakably, a purpose to require immediate payment of what was due "upon the determination of the contract by consent or otherwise." The interposition of this antithetical (to the preceding provisions for a limited line of credit) proposition absolutely forbids the reference of the succeeding phrase, beginning with this, to expressions preceding the phrase thus interposed. To transpose the phrase beginning with this so as to visit its qualifying effect upon the provisions plainly defining the limited line of credit would, we think, do violence to the very grammatical structure of this paragraph of the contract. If this antithetical proposition had not been interposed, as it is, there would be no hesitancy in according the phrase, beginning with this, the effect to qualify the provisions preceding it; but, as stated, the language and grammatical structure of the contract places an insuperable obstacle to that course. The use of the semicolon — a mere matter of punctuation — cannot be regarded as evincing an intent to refer the phrase, beginning with this, to provisions preceding the antithetical expression which itself immediately precedes the phrase to the interpretation of which a review of plea 10 as amended has invited our consideration.

The insistence, as upon the authority of Saint v. Wheeler,95 Ala. 362, 376, 10 So. 539, 36 Am. St. Rep. 210, that this plea only asserts that the plaintiff extended to Siegel "mere indulgence," merely forebore to take steps to enforce liability upon default, is not justified by the averments of the amended plea 10. The pith of the plea is that the plaintiff accorded Siegel credit beyond the limit of credit stipulated in the contract, by which instrument alone the obligation of the sureties was measurable and could be preserved.

The application for rehearing is denied.