Opinion
32924.
DECIDED JULY 3, 1950.
Action for damages; from Fulton Civil Court — Judge Wilson Parker. December 16, 1950.
Gambrell, Harlan Barwick, James C. Hill, for plaintiff in error.
J. F. Kemp, J. M. Johnson, contra.
Under a proper construction of the contract sued on, the petition stated a cause of action and the court erred in sustaining the general demurrer thereto.
DECIDED JULY 3, 1950.
Thomas P. Bussey brought an action for damages for breach of contract against Mrs. Mary K. Hager, as executrix of the estate of Clint W. Hager. The material allegations of the petition, as amended were substantially as follows. On or about May 23, 1944, Clint W. Hager entered into a binding agreement, supported by good and valuable consideration, between the said Hager, William E. Walsh and his wife, and the plaintiff. This agreement was a stakeholder or escrow agreement, under the terms of which Walsh and his wife were to pay over to Hager, as stakeholder, $1000; and Hager was to pay this money over to the plaintiff in the event that Walsh did not serve more than one year's confinement as a result of the sentence imposed upon him in the United States District Court for the Eastern District of South Carolina on May 23, 1944; and, the plaintiff was to make an effort to obtain the release of Walsh within one year. Walsh was a client of the plaintiff and was confined as the result of the sentence in question at some time after 4 p. m. on May 23, 1944. The agreement is alleged to be reflected in the following letters. "May 31, 1944, Hon. Thomas P. Bussey, 11 Broad Street, Charleston, S.C. Dear Mr. Bussey: I am in receipt of your recent letter of May 29, 1944 enclosing a bill from Miss Polhemus, who was the court stenographer that reported the testimony in our motion to suppress in the Walsh case. . . I note from your letter of May 23rd that you believe there is a very good chance of working out some arrangements whereby Walsh may be released to the army. I sincerely hope that this can be done. Mrs. Walsh called me long distance from New York and stated that she would be more than glad to pay you $1000 if Walsh's release can be effected. She asked me if I would hold the money until the services were rendered and stated that she was sending me a telegraphic money order for $1000. I have not received the $1000 yet but am satisfied that I will in the near future. I would be glad to be relieved of this gratuitous responsibility, but did agree to act in such capacity; therefore, in order that there may be no misunderstanding I would be glad for you to write me a letter stating what your agreement was with Mrs. Walsh in reference to this fee and the time in which the services were to be rendered and I will have to approve the same and put it in my file so that there will be no possibility of any misunderstanding . . . /s/ Clint W. Hager." "June 1, 1944, Mr. Clint W. Hager, Attorney at Law, 505 Connally Building, Atlanta, Georgia. Dear Mr. Hager: This will acknowledge receipt of your letter of May 31st. . . I have in mind and am working on several different angles to obtain some relief for our client Mr. Walsh. He is familiar with all of these angles, and while I am hopeful that at least one of them will afford early relief, it is possible that it may take some months for any material relief to be accomplished. If I could see you in person, I could tell you some things that I would not care to reduce to writing. However, to make a long story short, Mr. and Mrs. Walsh were agreeable to paying me a fee of one thousand dollars if from any angle Mr. Walsh's total confinement did not extend for more than one year. I thought that I should have something more secure than Mr. Walsh's intentions in the matter, and requested that they put up this amount and I tendered them the following receipt: `Received from William Elmo Walsh, the sum of one thousand dollars with the express agreement that if the said William Elmo Walsh shall serve more than one year's confinement as a result of the sentence imposed upon him in the United States Court for the Eastern District of South Carolina, then the entire sum of one thousand dollars shall be refunded by me to the said William E. Walsh; but otherwise, shall be retained by me for legal services and expenses.' The Walshes at first, seemed agreeable to this, but after some deliberation, declined to pay the money and wished to place it in escrow here. I did not wish to place the money in escrow for the simple reason that I did not wish anyone not connected with the case to know the details of our agreement, or to even indirectly get an idea of what I am trying to do for Walsh. Mrs. Walsh then countered with the suggestion that you hold the money pending the outcome of my efforts, and I told her that such would be perfectly agreeable to me. The quoted proposed receipt above, expresses the entire agreement with the Walshes, and I did not wish to impose upon you as a stakeholder in the matter, but apparently the Walshes will feel safer with the money in your hands. I feel that there is a good probability of my being able to accomplish results for Walsh much better than one year's confinement, but on the other hand, it is entirely possible that I might not succeed in reducing it to less than one year, and certainly if I cannot do any better than one year, the sum agreed on will have been well earned; in other words, the Walshes have everything to gain and nothing to lose by the agreement. I shall of course, appreciate your notifying me promptly when you have received the money from Mrs. Walsh, as I have already incurred some little expense in their behalf and expect to incur more as soon as I know definitely that I am protected . . . /s/ Thomas P. Bussey." "June 9, 1944, Hon. Thomas P. Bussey, 11 Broad Street, Charleston, S.C. Dear Mr. Bussey: I am in receipt of your letter of recent date in which you state the terms of your employment and the condition for payment of said fee. Mrs. Walsh sent me $1000 in the from of a cashier's check. I will deposit the same in a special account and sincerely hope that you are successful in earning it, for two reasons. I would like to see you make this fee and I would like to see out client released . . . /s/ Clint W. Hager." Pursuant to the alleged agreement Hager received from Walsh and Mrs. Walsh the $1000 and accepted the same agreeing to pay the amount over to the plaintiff on the happening of the condition stated in the alleged agreement. The plaintiff expended substantial time, efforts and money in behalf of Walsh, which efforts were instrumental in obtaining early release of Walsh. Walsh did not serve more than one year's confinement as a result of said sentence. He was released some time during the morning on May 23, 1945 and the plaintiff then requested the defendant (Clint W. Hager had previously died on or about December 11, 1944) to pay the $1000 to the plaintiff in accordance with the agreement, which the defendant refused to do. The defendant's demurrer upon the ground that the petition, as amended, stated no cause of action against the defendant, was sustained, and the plaintiff assigns error here upon that judgment of the trial court.
"Where a pleaded contract not only is executed in a foreign State, but contains nothing to indicate by the place of performance or otherwise that it was intended to be construed as a Georgia contract, it will be treated as a contract of the foreign State, and governed by its laws. Jackson v. Johnson, 67 Ga. 167 (2), 182; Davis v. DeVaughn, 7 Ga. App. 324, 325 ( 66 S.E. 956).
"( a) A contract of a foreign State which constituted one of the thirteen original colonies, or which was derived from territory included in one of such colonies, will be construed and governed by the common law, in the absence of any pleading to the contrary. Slaton v. Hall, 168 Ga. 710, 716 ( 148 S.E. 741, 73 A.L.R. 891); Thomas v. Shepherd, 42 Ga. App. 558 ( 156 S.E. 724), and cit.
"( b) And in such a case the construction of the common law given by the courts of this State will control in preference to the construction given by the courts of the State of the contract. Slaton v. Hall, supra; Lay v. N.C. St. L. Ry. Co., 131 Ga. 345 ( 62 S.E. 189); Thomas v. Clarkson, 125 Ga. 72 (3) ( 54 S.E. 77, 6 L.R.A. (N.S.) 658); Motors Mortgage Corp. v. Purchase-Money Note Co., 38 Ga. App. 222 ( 143 S.E. 459), and cit." Trustees of Jesse Parker Williams Hospital v. Nisbet, 189 Ga. 807, 811 ( 7 S.E.2d 737). In accordance with the foregoing principles, although it is conceded that the agreement sued on is a South Carolina contract, the validity, nature, obligation and construction of the contract will be governed by the common law as construed by the courts of this State, as the laws of South Carolina were not duly pleaded.
Under the terms of the contract the plaintiff Bussey was to receive $1000 if, as the result of his efforts, Walsh served not more than one year's confinement as a result of the sentence imposed upon him in the United States District Court of South Carolina on May 23, 1944. It alleged that Walsh was confined sometime after 4 p. m. on May 23, 1944, and, as a result of the plaintiff's efforts Walsh was released sometime during the morning hours of May 23, 1945. The question of primary importance is, does the petition show on its face that Walsh was confined more than one year within the contemplation of the agreement.
At common law the construction of a contract was a question of law for the court and the cardinal rule of interpretation was to determine the intention of the parties. If that intention was clear and it contravened no rule of law, and sufficient words were used to arrive at the intention, it was enforced irrespective of all technical or arbitrary rules of construction. Words were interpreted according to their primary acceptance or usual and common signification, unless from the context of the contract and the intention of the parties to be collected from it, they appeared to be used in a different sense.
While a solar or civil year is a determinate and well-known period, consisting for all practical purposes of three hundred sixty-five days and in leap year of three hundred sixty-six days (2 Bl. Comm. pp. 140-142; Redmond v. Glover, Dudley (Ga.) 107) the meaning of the term must be determined from the connection in which it is used, and that meaning given it which will carry into effect the intention of the parties. We find nothing in the contract to indicate that any other year than one of three hundred sixty-five days was intended by the parties. In computing the number of days that Walsh was actually confined, however, we are confronted with the problem of whether to count May 23, 1944, as the first day or May 23, 1945 as the last day, or whether to include both, as Walsh was confined a part of each of those days, and it has been said that at common law fractions of days were counted as whole days. It is obvious from what we have already said as to the construction of the contract in accordance with the common-law rules that our statutory rule (Code § 102-102 (8)) of counting either the first or last day is of no avail here. Nor does this case come within the rule for the computation of time where one must exercise a right or a privilege within a specified time. See, in that connection, Maxwell v. Liverpool, 12 Ga. App. 127 ( 76 S.E. 1036), and cases cited at page 131. Counting May 23, 1944, as a whole day, since Walsh was confined sometime after 4 p. m. on that day; and, counting May 23, 1945, as a whole day, since Walsh was not released until sometime during the morning hours of that day, Walsh could be said, under such a computation, to have served three hundred sixty-six days, or one day longer than the commonly accepted year of three hundred sixty-five days. This legal fiction that a day was an indivisible point of time was applicable to public acts and commercial transactions in which the precise computation of time, or the intention of the parties, was not material, and was never adhered to if to do so would work injustice (Lester v. Garland, 33 Eng. Rep. (Full Reprint) 748; Field v. Jones, 103 Eng. Rep. (Full Reprint) 530; Comb v. Pitt, 97 Eng. Rep. (Full Reprint) 907); and, if the need arose, to meet the ends of justice, time was computed de momento in momentum. Lester v. Garland, supra. Forfeitures were never favored at common law. The common-law courts, in the construction of contracts, have always adopted that construction which would uphold and enforce rather than destroy bona fide transactions, the intention of the parties being a paramount consideration. Measured from the time of confinement to the time of release the prisoner Walsh was confined several hours less than one year, and if his confinement was reduced from a longer period of years to several hours less than 365 days of twenty-four hours each, we do not think that the parties could have intended so technical a construction as that fractions of days should be counted as whole days, thereby defeating the plaintiff's recovery after he had for all practical purposes performed his part of the contract. As we construe the petition and contract, Walsh was not confined "more than one year" and the petition stated a cause of action. We are strengthened in this view by the fact that the contractual limitation expressed in the contract provides that in the event the confinement extended for more than one year the $1000 was to be refunded, and we find nothing in the contract that would indicate that the parties intended that the $1000 was to be forfeited if Walsh was not released within one year. The contract, properly construed, shows that a full year was contemplated. It follows that the court erred in sustaining the general demurrer.
Judgment reversed. Gardner and Townsend, JJ., concur.