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the declaration will be held bad on general, tion, and elegant in expression. It appears demurrer provided such repugnancy and in- | to us, however, that it is inexact in the state consistency relate to matters of substance ment that the defendant demurred to the and not of form only.” It was also held by declaration. We are unable to find in the this court in the case of State v. Seaboard record any such demurrer, and the opinion Air Line Railway, 56 Fla. 670, 47 South. 986, filed shows that it was the plaintiff's own that: "Where allegations of a declaration demurrer to defendant's pleas which we felt containing only one count are repugnant to constrained to visit on the declaration. As and inconsistent with each other, such al- to the first contention, it is argued in the pelegations neutralize each other, and the dec-tition that: “The question is not whether in laration will be held bad on demurrer. A this instrument ‘and' means 'and' or 'or,' or like result must necessarily follow if the al- whether it is conjunctive or disjunctive, but legations or statements contained in a cause what is the meaning and effect which would of action, which is made a part of the dec. be given it as a conjunctive conjunction?” laration by apt words, are repugnant to and This contention seems to us to be irreconcilinconsistent with the allegations in the dec- able with that of the brief of the defendant laration."
in error which was before us when the opinIn the instant case, as before stated, in ion was filed. The argument of the brief is: each and every count the written agreement "If the view be taken that the words of the of the Capital City Bank is made a part Capital Publishing Company and himself thereof. Giving to the word "and" used in personally' are excludingly descriptive of the said agreement between “Capital Publishing kind of obligations, then we say that the Company" and "himself,” its usual meaning construction of those words should be such as a copulative conjunction, the agreement as to substitute 'or' for the word 'and,' so means that the Capital City Bank indemni- that it could read 'of the Capital Publishing fied and released I. B. Hilson from certain Company or himself personally.' It frequentobligations of the said company and himself ly happens that the word 'and' means 'or,' which were the obligations of both. There is and will be so construed by the court in ornothing in the context of the agreement der to carry out the intention of the parties." which justifies any other meaning, and no So we see that we are invited by the brief circumstances connected with the making of of the defendant in error to construe the the agreement are stated in the declaration word "and" as meaning "or," and in the pe which would justify any other meaning. tition we are assured that is not the question Each count of the declaration is based on at all. It was because of this contention in defendant's failure to pay or release the sev- the brief that we entered into an examinaeral obligations of the publishing company tion of the meaning of the word "and" as and Hilson. Each count, therefore, con- afforded in the decisions referred to in the tains allegations which are repugnant to opinion. Considering, then, the word "and" and inconsistent with each other, for, if the as a copulative conjunction, the question is: defendant agreed release and pay obliga- What meaning is to be given to it in tions which the publishing company owed agreement sued on? Does it, in connection and which Hilson also owed, it is not liable with all the words of the sentence in wbich for their several obligations. We are con- it is used, import as between Hilson and the strained, therefore, to conclude that the deco Capital Publishing Company joint obligalaration states no cause of action against tions, joint and several obligations, or serthe defendant, and that a judgment based eral obligations? Prima facie, in the absence thereon is erroneous.
of statute the liability of two or more perJudgment reversed.
sons on the same contract is a joint liability, All concur, except TAYLOR, J., absent 2 Page on Contracts, par. 1132. As to the on account of illness.
classical use of the word "and," every one
knows that it is constantly used to group un. On Rehearing.
der one general concept things which in themHOCKER, J. A petition for rehearing selves are several and distinct. The instanhas been filed in this case setting up that ces of such use are too numerous to need cithere is error in the original opinion in sev- tation. Every one also knows that the word eral particulars: First, that the court erred is used to couple together words and phrases in confining itself to deciding that the word | used as jointly describing or qualifying in "and" used in the contract is "conjunctive," the adjective sense some other word or phrase. and not “disjunctive." "That is, that prima in the instant case the subject of the confacie it means 'and' not for.'” Second, that tract is “obligation." The matter predicated the declaration alleges the $6,500 obligation of them is that they are the obligations of is an obligation of the Capital Publishing “the Capital Publishing Company and himCompany and Hilson severally, and that self (Hilson) personally.” It is therefore the demurrer to the declaration admitted predicated of them, at least prima facie, that the declaration to be true, and thus admit they are each the obligations of these two ted this several obligation.
parties. It is also contended that the ser. The petition as a literary criticism is inter tence in the agreement in which the word
as is in daily use to indicate a several ob- / will and does indemnify and release Mr. I. ligation, that the expanded form would be B. Hilson from the obligations of the Capital "the obligations of the Capital Publishing Publishing Company and the obligations of Company, and the obligations of himself per himself personally as set forth in the list of sonally," and this expanded form clearly obligations that follows; that the sentence shows a several obligation. To us this ex- under construction may be a syncopated one, pansion of the sentence does not clear up the the word “obligations” being understood to ambiguity. For of what use in this sentence follow the word "and" in the quoted sentence is the adverb “personally." Adverbs only of the contract, thus showing a several obliqualify verbs, adjectives, or other adverbs. gation. They do not qualify nouns. To make this ad. I can see, too, how the contract is subject verb of any use in this sentence, the sentence to the construction put upon it in the opinion will have to be further expanded by supply- prepared by Mr. Justice HOCKER. This being some word which might be suggested by ing so, the sentence is capable of two conthe context. It seems to us that if the sen- structions, and must, under the rules of law, tence is to be expanded it should read as fol. be construed most strongly against the one lows, the words we supply being in brackets: claiming under the contract. "The following obligations of the Capital It may be, from a reading of this declaraPublishing Company and himself (for which tion, the whole of the transaction between he is] personally [liable)"—for his personal these parties is not before us. Perhaps, the liability was evidently in Mr. Hilson's mind matter may be so stated as to make it clear when the contract was made, as shown by that the bank intended to assume the several the fact that it was made for his benefit liability of Hilson independent of any conalone. Thus expanded, it seems to us, that it nection of the publishing company. imports a joint obligation. If we examine the contract, we see that, while the names of the persons and firms to whom the alleg.
(59 Fla. 529) ed obligations are due are given, the amounts
HUDSON v. HUDSON. seem to be stated as "about" such and such (Supreme Court of Florida. Feb. 2, 1910. figures. The exact amount of the debts is Headnotes Filed April 15, 1910.) not stated. Therefore, taken together with
(Syllabus by the Court.) what precedes them, it is hardly legitimate
1. DIVORCE ($ 37*) — GROUNDS-DESERTIONto argue that the several amounts of these
“DESERTER. obligations and the names of the parties to In a suit for divorce upon the ground of whom they are said to be due are conclu- willful, obstinate, and continued desertion for sively descriptive of the obligations against the statutory period. it is immaterial which of
the married parties leaves the marital home, the which the plaintiff in error gave the indem- one who intends bringing the cohabitation to an nity contract.
end commits the desertion. The party who Again, the agreement reads: “We hereby drives the other away is the "deserter," and a
wife may drive her husband away. indemnify and release I. B. Hilson from the
[Ed. Note.-For other cases, see Divorce, following obligations of the Capital Publish- Cent. Dig. 98 107-132; Dec. Dig. § 37.* ing Company and himself personally.” As it For other definitions, see Words and Phrases, is Mr. Hilson alone who is protected by the vol. 3, p. 2020.) indemnity, and not the Capital Publishing 2. DIVORCE ($ 37*)—DESERTION—"WILLFUL”Company, it would seem natural that the
"OBSTINATE." contract was worded as it is, in order that divorce, "willful," "obstinate," and continued de
The meaning of the statutory ground for he might be protected against obligations of sertion for more than one year, considered and the Capital Publishing Company for which discussed. he was jointly liable with that company;
[Ed. Note.-For other cases, see Divorce, for, in the case as stated in the declaration, i Cent. Dig. $$ 107-132; Dec. Dig. § 37.* we can discover no reason why he should be vol. 8, pp. 7468-7481, 7835, 7836; vol. 6, p.
For other definitions, see Words and Phrases, protected against the several obligations of 4890.] the company, for which he was not liable.
In Banc. Appeal from Circuit Court, SanIf the agreement does not embrace the sev.
ta Rosa County; J. E. Wolfe, Judge. eral obligations of the Capital Publishing
Bill by Moses D. Hudson against Frances Company, we do not see why the same agree- E. Hudson for divorce. Bill dismissed, and ment should embrace the several obligations
complainant appeals. Reversed. of Mr. Hilson. We have given the petition careful consideration, and are unable to see
J. P. Stokes, for appellant. tbat the facts and arguments presented free
PARKHILL, J. the contract sued on from ambiguity.
The appellant filed his The petition is denied. All concur, except bill of complaint praying for a decree disPARKHILL, J., who concurs in a separate solving the bonds of matrimony then existopinion.
ing between him and his wife, the appellee,
upon two grounds: Willful, obstinate, and PARKHILL, J. (concurring). I can read continued desertion for more than one year; lly see how this contract means that the bank land for extreme cruelty.
A decree pro confesso was duly entered | and lived there.” The parties have not lived against the defendant for her failure to together since that time, a period much lonplead, answer, or demur to the bill of com- ger than the one year prescribed by the statplaint on the rule day succeeding that to ute. which process of subpoena was returnable. We think the testimony sustains the The cause was referred to Hon. C. H. Laney, ground of a willful, obstinate, and continued as special master, who made a report of the desertion for more than one year. testimony with recommendation that the re First, as to desertion. Mr. Bishop, in the lief prayed be granted. Upon consideration second volume of his work on Marriage and of same, the chancellor dismissed the bill Divorce, p. 597, says: "It is immaterial and complainant appealed.
which of the married parties leave the marThere is no conflict in the testimony. The ital home, the one who intends bringing the facts are not denied or disputed. It appears cohabitation to an end commits the deserthat ever since these parties were married tion. Thus, to drive away the wife from the complaining husband was without fault, the house is to desert her.” The party who but, during the last few years of their mar- drives the other away is the deserter, and a ried life, the defendant was very quarrel- wife may drive her husband away. 5 Am. & some, and would fuss and curse the com- Eng. Ency. Law, 803. See Gray v. Gray, 15 plainant almost every day. Upon one occa- Ala. 779, 784; Skean v. Skean, 33 X. J. Eq. sion the defendant tried to induce one Jane 148. Thompson, daughter by a former husband, The testimony shows that the defendant to put poison in the bread intended for the was the one who intended to bring the cocomplainant to eat. Jane refused to do so, habitation to an end. After years of cursing and told Moses Hudson about it. Upon an- and abusing her husband, endeavoring to other occasion the defendant tried to hire a take even his life, and with violent language man to kill the complainant, and again about and epithet most opprobrious she drove this three months before the final separation of patient, nonoffending man from the marital the parties, the defendant tried to get one c. home. There is no doubt about the meaning C. Thompson to go hunting with complain- of her declaration: "Moses Hudson, you ant and shoot him, pretending that the gun God damn son of a bitch, you can't call me was discharged accidentally. Finally, one 'wife' any more, and I will never live with morning in May, 1905, the defendant "flew you another day.” The wife was the deinto a violent rage" at the complainant about serter. a matter for which he was not to blame, pub Was the desertion willful? Willful means licly cursing and abusing him, much to his on purpose--intentional. As we have seen, embarrassment, continuing this conduct all the defendant intentionally and on purpose the morning until he left bome to avoid her. and willfully brought the cohabitation to an Hoping that she would be friendly, Hudson end. Crawford v. Crawford, 17 Fla. 180. returned to his home in the afternoon of that Was the desertion obstinate? Obstinate day, but Mrs. Hudson was just as bad as means determined-fixed-persistent. During when he left her in the morning, cursing and all the years of the separation, the deserting abusing him shamefully. The complainant wife was determined, fixed, and persistent testified: "She ordered me out of the house in putting an end to the cohabitation, in her and told me to leave and never come back, desertion, although her husband lived near that she never intended to live with me by in his boat “the best he could.” All that again, and that she did not want to have time she made no effort to bring about a anything to do with me. I argued the ques- reconciliation or a restoration of the marital tion with her and tried to show her where relations, which she had terminated. she was mistaken, but she would not hear In New Jersey, where the desertion must me. She ordered me out again, and again be, like here, "willful, continued, and obstitold me never to come back and that she nate," in Jerolamon v. Jerolamon (N. J. Ch.) would never live with me again. There be- 54 Atl. 166, where the husband being in fault ing nothing else for me to do I left. I went was the deserter, the court said: “The quesdown to my boat and lived there the best Ition in the case is whether the separation could.” He was asked, “What was the last was continued and obstinate on his part for thing she said to you?” “Moses Hudson, you two years after that time. The separation God damn son of a bitch, you can't call me in this case was, as I have stated, legally 'wife' any more, and I will never live with chargeable to the husband, and under the you another day," was her answer. Accord-rule applied in cases of this character it was ing to the testimony of one of the witnesses, the duty of the husband to reform bis habits, "She quit him. She called him a God damn and after such reformation and within the sou of a bitch. She told him he could never two years seek out his wife, and apply to call her 'wife' again. She told him he had to return, giving her reasonable assurances of go. He went off in the morning and came the sincerity of his reformation, and of her back in the evening. She cursed him out probable safety in resuming marital relaagain, and told him that she didn't want hiin tions." In McVickar v. McVickar, 46 N. J.
court said: "If, however, the husband's cru-, invite him to return and resume a career of elty was not of such intensity as to amount brutality, drunkenness, or other misconduct to desertion, still it was such as to justify which has made her life miserable. It is the wife in temporarily separating herself the duty of the husband to repent and sig. from him, and it was his duty to seek a re- nify his repentance to his wife.” turn. This he did not do, but for many years In Trall v. Trall, 32 N. J. Eq. 231, this remained entirely passive, manifesting no rule is correctly stated : "Even if a wife interest in her welfare or desire to resume deserts without cause, and afterwards remarital relations. This, under the circum- alizes that she has acted hastily or foolishstances, constituted desertion, and entitles ly, and would return if the way was opened the wife to a decree."
for her, but the husband refrains from doWe are not unmindful that the marital ing anything to induce her to return, for the relation is recognized, both legally and mor- purpose of making her absence a ground for ally, as imposing obligations pre-eminently divorce, her desertion is not obstinate, and on the husband. As the husband generally not, therefore, a ground for divorce. does the courting before marriage he may In such a case she remains away, not of her well continue it afterwards. As pointed out own will, but because she cannot get back in Sargent v. Sargent, 36 N. J. Eq. 644, so- without danger of being repulsed or subciety, so far at least, has regarded his duty jected to the pain of humiliation that no in maintaining and preserving those rela- husband has the right to inflict upon his tions as of the superior order. “Not that wife.” As peculiarly applicable to the inthe tie is more sacred or less binding on the stant case, the court went on to say: “But part of the wife, but where the act of deser- a careful study of the temper 'and disposition occurs without reason on his part and tion of this woman, as portrayed in the eviwithout fault on her side, the same efforts dence, has satisfied me that any effort on to restore harmonious relations are not ex- the part of her husband to induce her to pected from her as would be from him, if return would most probably have resulted the case were reversed.” The principle that in strengthening her determination to rethe integrity of the matrimonial tie re- main away.” And the court held that a quires this of the husband is stated by the husband is not bound to attempt to induce chancellor in Schanck v. Schanck, 33 N. J. his wife to return, when it is clear any Eq. 363. That was a case where a wife in effort in that direction would be unavailing. anger told her husband that he "might go Continuing, the court said: “The case is a his way, and she would go hers," and gave very sad one. The parties are both well adother evidence of her desire that they should vanced in years. Their married life covers live separate, but immediately retracted and a period of more than 30 years. The ties besought him not to go, and he, notwith-that once bound them together were strengthstanding her entreaties, left her, in a pas- ened by the birth of a child, who is now a sion, and, without any attempt at reconcil. man. I think most husbands and wives iation, and without contributing anything would regard death as a much more preftowards her support or even communicating erable termination of 30 years of married with her in any way, remained away from life than a divorce. But the question preher for three years, living all the time in sented for judgment is one of blended law the same county with her; and the court and fact, and not of sentiment or feeling, held that she was entitled to a divorce for and must be decided by the law and facts." desertion. “Under the circumstances of the The appellate court, in this case, sustained case," said the court, “the husband owed a the decree of the court below granting the duty to his wife a duty to society—to husband a divorce. And so, as decided in avoid, as he well might have done, the con- Lammertz v. Lammertz, 59 N. J. Eq. 649, 45 sequences which his punctilious resentment Atl. 271, "Where the wife absented herself (so exacting that he would not even con- from her husband's home for more than descend to propose the terms on which it two years, and such absence is not justified might be appeased), has inflicted upon his by her husband's conduct towards her, and wife.
It is clear that she never the wife's conduct is such that little hope intended to desert him. Her letters offered was left of a permanent reconciliation, it in evidence by him contain the very strong. will be considered that the desertion is obest expressions of affection, and were un- stinate, and divorce will be decreed, though doubtedly sincere. Were he before the court no proof was offered that the husband asking a divorce from her on the ground of sought her and urged her return." desertion, his application would be denied Recognizing the general rule that the husfor the reason that he has been derelict in band, being the head of the household, is his duty towards her under the circum- bound to do what he may, as a just man, to stances." And so would we say, in the in- bring about his wife's return or a restorastant case, upon similar facts. In view of tiou of the marital relations even where the the facts stated in Wilson v. Wilson, 66 N. original separation was wrongful on her J. Eq. 237, 57 Atl. 552, the court said: “An part, yet we think, under the peculiar cirinjured wife, under such circumstances, is cumstances of the instant case, the wife's
one that any further effort by the complain- | Railroad Company and another being sunant to induce his wife to return to him moned as garnishees. From the judgment would have been unavailing; and that his rendered, plaintiffs appeal. Affirmed. right to a decree is not dependent upon his having done any more than was done by Bonner, for appellees.
D. B. Cobbs, for appellants. Rickarby & him in that direction. Indeed, as was said in Trall v. Trall, supra, "any effort on the part of her husband to induce her to re EVANS, J. Appellants obtained a judg. turn would most probably have resulted in ment, on the 20th day of October, 1908, at the strengthening her determination to remain October, term of the law and equity court of away.” And the evidence justifies us in Mobile, against Eugene A. Bayley for the adding that, perhaps, any further effort on
sum of $171.33 and costs of suit. On Novemhis part to have continued the marriage re ber 4, 1908, the said Eugene A. Bayley was lation would have caused her to end it by adjudged a bankrupt. On November 14, taking his life.
1908, appellants made affidavit, and gave Was the desertion continued for one year? bond, as required by the statutes of this Yes, for nearly four years prior to the filing state, and obtained a writ of garnishment of this bill the wife's desertion continued,
on said judgment to the Mobile, Jackson & as we have seen. From the time the de- Kansas City Railroad Company, a corporafendant put an end to the cohabitation, she tion, and to the New Orleans, Mobile & Chidid not live with her husband another day, cago Railroad Company, a corporation. On as she declared would be the case when she the 9th day of December, 1908, the Mobile, drove him away.
Jackson & Kansas City Railroad Company We think the defendant's desertion was
filed its answer, admitting an indebtedness willful, obstinate, and continued by the wife of $85. On January 11, 1909, the same garfor more than one year, and that under the nishee filed a supplemental answer, admitting facts of this case, as we gather them from
an indebtedness of $170 at the time of makthe record, we are constrained to hold that ing supplemental answer. Of this amount the complainant is entitled to his decree, and $8.50 was due for wages due the said E. A. that the chancellor erred in dismissing the Bayley for personal services on the 1st, 20 bill.
and 3d days of November, 1908, and the reThe decree is reversed.
mainder of said amount due was for personAll concur, except TAYLOR, J., absent on
al services rendered subsequent to Novemaccount of illness.
ber 3, 1908, and up to and including December 31, 1908, when said E. A. Bayley's em
ployment with garnishee terminated. The (166 Ala. 187)
said garnishee, in answering, averred that J. B. ELLIS & CO. v. MOBILE, J. & K. C. R. defendant, E. A. Bayley, had notified it that CO. et al.
he claimed the wages due him for November (Supreme Court of Alabama. Nov. 23, 1909. 1, 2, and 3, 1908, as being exempt to him Rehearing Denied Feb. 26, 1910.)
under the provisions of section 4165 of the 1. STIPULATIONS (8 12*)—EFFECT OF SUBSE- the remainder of money in the hands of gar
Code of Alabama, and that he claimed that QUENT PROCEEDINGS.
The effect of a stipulation by counsel that nishee was earned by him as wages for perthe facts set forth in a motion shall be consider-sonal services subsequent to his having been ed as true is not affected by the amendment of adjudged a bankrupt by the honorable Dissuch motion on the subsequent motion of one of such counsel.
trict Oourt of the United States for the [Ed. Note.-For other cases, see Stipulations, Southern District of Alabama. Dec. Dig. $ 12.*]
Upon this supplemental answer being filed, 2. BANKRUPTCY (8 421*) - DISCHARGE - EF- the plaintiff filed motion for leave to move FECT ON PRIOR JUDGMENT.
A judgment is extinguished by a subse- to judgment, and for judgment against the quent discharge in bankruptcy of the judgment garnishee so answering, and set up in said defendant.
motion the facts as stated in the beginning [Ed. Note.-For other cases, see Bankruptcy, of this opinion. The attorneys for the plainDec. Dig. § 421.*]
tiff and for the garnishee filed a written agree3. BANKRUPTCY (8 418*) · EFFECT OF Dis-ment, signed by each, that the matters set up
as facts in said motion were true, and that, The earnings of a debtor subsequent to his discharge in bankruptcy are not subject to a
if the motion was submitted Monday, Janu. debt contracted prior to such discharge; the ary 18, 1909, the garnishee, without prejudice debt being extinguished by the discharge.
to plaintiff for rights, might pay to the said [Ed. Note.-For other cases, see Bankruptcy, Bayley $50 of the money answered already Dec. Dig. & 418.*]
as exempt to him under the exemption laws Appeal from Law and Equity Court, Mo- of the state. The garnishee then moved the bile County; Saffold Berney, Judge.
court for an order discharging said garnishee Action by J. B. Ellis & Co. against E. A. upon his final answer filed in this cause, and Bayley; the Mobile, Jackson & Kansas City | plaintiff objected to this motion, because the