Opinion
(June Term, 1861.)
Where an instrument is susceptible of two constructions, by one of which it will take effect and by the other it will be inoperative for the want of a subject-matter to act on, it shall receive that construction by which it will take effect; for it cannot be supposed that the parties intended to do a nugatory act.
ASSUMPSIT, tried before Hayward, J., at last Spring Term of ORANGE.
Phillips and Norwood for plaintiff.
Graham for defendant.
The plaintiff declared on the following order, in writing, and the acceptance thereon, to wit:
MR. WILLIAM ANTHONY: — Please pay to James T. Hunter, constable, all the executions in his hands for collection as they come due against me and brother; this 4 March, 1857. J. W. HOLT.
Indorsed thereon was the following: "The within order this day accepted by William Anthony; 4 March, 1857.
"WILLIAM ANTHONY."
The plaintiff then offered in evidence sundry justices' judgments in favor of divers persons against J. W. Holt and brother, Sterling W. Holt, rendered upon warrants which had been served by the plaintiff as constable, and also showed that executions had issued on the same, which had been stayed by the parties, and that the papers containing these judgments, executions, and stays of execution were in his hands at the date of the order, to wit, on 4 March, 1857. The aggregate amount of these papers in the hands of the plaintiff was $725.85.
The defendant objected to the admission of these papers because, as he insisted, they were not executions at the date of the order and the date of his acceptance, and called on the court to instruct the jury that they did not sustain the plaintiff's cause of action.
(386) His Honor charged the jury that if they believed from the evidence that the judgments and executions issued and stayed as above stated were in the hands of the plaintiff at the time the order was given, and that the order was intended to apply to them, and was so accepted by the defendant, they should find for the plaintiff. The defendant's counsel excepted.
Verdict and judgment for plaintiff. Appeal by defendant.
The papers which were in the hands of the plaintiff can be made to fit the description given in the acceptance of the defendant by aid of the maxim, " Ut res magis valeat quam pereat, which means that instruments should be liberally construed, so as to give them effect and carry out the intention of the parties, and when an instrument is susceptible of two constructions, one by which it will take effect and the other by which it will be inoperative for the want of a subject-matter to act on, it shall receive that construction which will give it effect. This rule is based on the presumption that when parties make an instrument the intention is that it shall be effectual, and not nugatory.
"Executions in the hands of an officer," taken literally, would apply to process in his hands which was then in a condition to be acted on, and would not fit judgments in the officer's hands on which execution had been stayed; but by aid of the words "as they come due," we see that the word "executions" is not to be taken literally, for the papers to which reference was made were some that were about to become due at different times; and taking the whole description, they as aptly point out judgments on which were entered "executions issued and stayed" as any other terms of description that could have been used.
The suggestion that these words ought to be considered surplusage has nothing to support it. That is sometimes done in order to give effect to an instrument in which repugnant words are used, but is never applied for the purpose of defeating an instrument. There is (387)
PER CURIAM. No error.
Cited: Pass v. Critcher, 112 N.C. 408; Torrey v. Cannon, 171 N.C. 521.