Opinion
December, 1894.
Charles W. Coleman, for respondent.
Henry Schmitt, for appellant.
A decree of separation was granted on March 19, 1887, to the plaintiff, and the defendant was directed to pay her "the sum of twenty dollars per week * * * in the following manner: That is to say, in sums of forty dollars semi-monthly, on the first and third Mondays of each month." Twenty dollars per week amount annually to $1,040; forty dollars semi-monthly to $960. Defendant paid the latter sum for over six years, up to September, 1893, and it does not appear that any other demand was made upon him during that period. In June and July, 1894, having been irregular in his payments of eighty dollars per month for several months, and being in arrears therefor, the plaintiff made a demand upon him for arrears of alimony, at the rate of $1,040 per annum, for the whole period from the date of the decree up to that time, and, payment not having been made, she instituted proceedings to punish him for contempt.
The court granted the motion in so far as it enforced unpaid alimony at the rate of eighty dollars per month, but declined to adopt the plaintiff's view that the decree compelled the payment of any greater sum. In this view we agree. There seems to be a contradiction in the terms of the decree, which provides for the payment of twenty dollars per week by payments of forty dollars semi-monthly. This doubtless arose from the familiar habit of reckoning four weeks to the month, and clearly indicates that that method of computation was in the minds of the parties and counsel when weekly payments of twenty dollars were specified, and that fifty-two payments per annum of twenty dollars each were not contemplated. As the decree was drawn by plaintiff's counsel, it might, with propriety, be urged that it is to be construed most strongly against her, but it certainly has been construed in one way by both parties, as shown by the regular payment and receipt of forty dollars semi-monthly for over six years, without any proceedings having been taken during that time to enforce the payment of any greater sum. The construction now claimed by defendant having, therefore, been adopted by both parties, must, under the circumstances, be accepted by the court as their intention.
Order affirmed, with costs and disbursements.
BISCHOFF and PRYOR, JJ., concur.
Order affirmed, with costs and disbursements.