Comer v. Lehman, Durr & Co. , 87 Ala. 362 ( 1888 )

McCLELLAN, J.

The negotiations of the parties, which led up to and resulted in the execution of the mortgage, may, on the case as presented by the complainants, be epitomized thus: Comer desired to borrow seven thousand dollars from Lehman,.Durr & Co. The latter required that the loan be secured by mortgage. Comer proposed to secure them by assigning certain dioses in action, and by mortgage on certain crops, and on all his mules and horses then in use on his plantations in Barbour and Bullock counties, and represented that there were twenty head of such mules and horses, though he in fact had thirty-six horses and mules on said plantations at the time, as afterwards transpired. This proposition was accepted, the mortgage drawn accordingly, and the money advanced. The contract thus reduced to writing was the contract upon which the minds of the parties had met. The agreement was for twenty head of mules and horses — the contract was so written. The intention of the parties was to cover that number, and that intention was embodied in the paper. Had complainants known the real facts, they might have declined to advance the money, unless Comer would put thirty-six instead of twenty mules and horses in the mortgage; and Comer might or might not have done so. The intentions of the parties might have been other than they were, had all the facts been known to the complainants; on the facts as represented, the intention was clear, and is clearly expressed in the instrument. Equity will reform written contracts, so as to make them evidence what they were intended to evidence — the pact between the parties; but it will not amend a contract entered into under a misapprehension of facts by one party or both, so as to make of it an agreement which the parties, or either of them, did not contemplate, and which the parties, or one of them, might have declined to execute, had both been cognizant of all the facts. This would be, not to make the writing speak the true terms of the agreement — the real intent of the parties — but to make a new contract embodying terms on which the minds of the parties not only had not met, but with respect to which, in this case, according to the aspect of the evidence most favorable to the complainants, one of the parties had resorted to misrepresentation to avoid. This may have been fraud; it may have afforded ground for equitable relief against the contract made; but it is not ground for making a new contract between the parties. We discover no error in the decree of the chancellor on this part of the case.

The granting part of the mortgage, or so much of it as is material for us to consider, is in the following words: “I, the said J. IP. Comer, do by these presents grant, bargain, sell and convey, to the said Lehman, Durr & Co., the following real and personal property, to-wit, the entire crops of corn, cotton, fodder, cotton-seed, and all other crops of every kind or description, which may be made and grown during the present year on the lands in Bullock and Barbour county, which I am cultivating and causing to be cultivated during the present year, to the extent of one hundred bales of cotton, lohich said cotton is to be the first cotton picked and raised on any of my plantations; said cotton is to weigh jive hundred pounds average to the bale; any balance after such 100 bales cotton he may mortgage to other par/¿Vs.” In making this mortgage, a printed form was used, and the instrument as executed was partly printed and partly written. Of the clause quoted above, that part which is italicized is written, and the other is printed. The instrument also undertook to convey twenty mules and horses, and to transfer and assign certain choses in action, amounting to ten thousand dollars, to secure a loan of seven thousand dollars. The chancellor construed that part of the granting clause of the mortgage which is quoted above to embrace and convey one hundred bales of cotton, and all of the other crops grown on the plantations referred to. My own opinion is, that it covers only the one hundred bales of cotton. I base this conclusion on the following considerations: (1.) The words, “entire crops of corn, cotton, cotton-seed,” &c., appear in the printed form. They are inconsistent with the written limitations, which, to my mind, refer to the substantive term, “entire crops,” and confine the operation of the instrument to one hundred bales of cotton out of the crop. The use of the words, “of corn, cotton-seed,” &c., is due to the fact that they were a part of the printed paper intended for general application, and is nou referable to the intention of the parties to this particular transaction. In such cases, the rule is to discard the irreconcilable printed words, and look alone to those that are written, as being the best exponents of intention.—Amer. Ex. Co. v. Binckney, 29 Ill. 410; Robertson v. Erench, 4 East, 130. (2.) The property which this interpretation leaves nominally subject to the mortgage, was amply sufficient to secure the money advanced; and it is not to be assumed, as showing intention, that the mortgagees would have demanded, or the mortgagor would have consented to give, more security than was necessary, especially when the paper itself evidences that it was contemplated by both parties that Comer would have to execute other mortgages to secure additional advances. (3.) The correspondence of the parties between the execution and the law-day of the mortgage tends strongly to show that each and all of them treated and construed it as covering no part of the crops except the one hundred bales of cotton.

But a majority of the court have reached a different conclusion. They take a middle ground between my position and that of the chancellor, and hold that the instrument is an absolute mortgage, so to speak, on one hundred bales of cotton, and that it covers also the other crops, but only for the purpose of securing the delivery of one hundred bales of cotton, or the payment of the value thereof, and only to the extent necessary to an effectuation of that purpose. This conclusion has been reached mainly on the consideration, that no other construction will admit of some meaning being given to each of the words employed. Under this construction, the chancellor will so shape his further action in the premises as to subject the other crops, or the proceeds arising from a sale of them, to the end that the complainants shall receive the full value of the one hundred bales of cotton, of the quality indicated in the mortgage.

The Chancery Court having taken jurisdiction to foreclose the mortgage on the crops which were in the possession of H. M. Comer & Co. in Alabama, at the time the bill was filed, properly took cognizance of complainants’ claim against said H. M. Comer & Co., on account of cotton covered by the mortgage, which had been received and disposed of by them before the suit was instituted.

This cotton, it appears, was not embraced in the forthcoming bond which Comer & Co. executed, and the consideration which rendered it inequitable to decree interest on the value of the property covered by that bond did not apply to the proceeds of the cotton. The .decree should have allowed complainants interest on the value of the cotton which had been disposed of by Comer & Co. before bill filed, from tbe time of its sale by them.

For tbe errors above indicated, tbe decree is reversed, and tbe cause is remanded.