Peoples Savings Bank & Trust Company, a Corporation, Plaintiff in Error, v. G. F. Landstreet, Defendant in Error, 80 Fla. 853

West, J. Suit was brought by plaintiff in error to recover thé sum of two' drafts drawn in its favor upon defendant in error, payment of which was" refused. An amended declaration was demurred to and the demurrer was sustained. Plaintiff in error declined to amend its declaration,’ whereupon judgment was entered' by’ the court upon the "demurrer ‘in' favor of defendant in error. The several counts of the declaration are predicated upon the same transaction. The first count is "typical and states tjie case of plaintiff in error. We insert it here, omitting formal parts: “First.

That heretofore, to-wit: on or about tjie fifth day of ‘Juné, 1917, in consideration that the said plaintiff at the special intsance and request of said defendant would advance and pay to one Albert 0. Landstreet certain sums of money on certain drafts drawn by said Albert 0. Landstreet on said G. ÍF. Landstreet, the defendant promised that', the said defendant, would in such event pay and honor all of such drafts of said Albert O.

Landstreet drawn on him, as presented, if no such draft amounted to more than Five Hundred Dollars, the said promise of the said defendant being in words and figures as follows: “ ‘Miami, Florida, June 5-17. “ ‘Mr. Albert C. Landstreet, “ ‘Memphis, Tenn. “ ‘Dear $ir: u ‘You may inform the Peoples Savings Bank of your city that I will honor your drafts drawn on me, amount not to exceed five hundred* dollar’s,' if 'this will' be of service to you. “ ‘Yours, “ ‘G. F. LANDSTREET-’ “And plaintiff says that thereafter divers and sundry drafts of various amounts were drawn by the said Albert 0. Landstreet on the said G.

F. Landstreet for divers sums of money aggregating far more than Five Hundred Dollars, and that from time to time said sums were advanced by said plaintiff to the said Albert 0. Landstreet, all of which were paid until, to-wit: the 81st of October, 1917, when the said Albert C. Landstreet drew a certain draft on the said G. F.

Landstreet for the sum of Three Hundred Seventy-five Dollars and did present the same to this plaintiff' and the said plaintiff thereupon, relying on the said promises and undertakings of the defendant, set out in the above writing, and confiding in the promises and agreements made by the said. defendant, and being induced solely thereby, did pay over and deliver to said Albert C. Landstreet Three Hundred Seventy-five Dollars, lawful money of the United States of America and of the value of Three Hundrey Seventy-five Dollars, and thereupon the said draft was duly and properly presented to the said' G. F.

Landstreet, but he, the said G. F. Landstreet, refused to honor said draft and refused to pay the same and the amount now remains unpaid. “Hence this suit and plaintiff claims One Thousand Dollars.” One question only is presented for consideration.

Counsel for plaintiff in error say in their brief that the pleadings have been so framed as to present the question of whether or not the paper writing referred to in the declaration is a continuing guaranty and' whether the defendant in error by accepting drafts from time to time in excess of the amount stated in this paper writing without objection has estopped himself from denying his liability, and counsel for defendant in error agree that the question presented is whether the instument sued on is a continuing guaranty.

The contention is made that since, according to the allegations of the declaration, the drawee of the drafts himself construed the paper writing which is the basis of his alleged liability as a continuing warranty, as evidenced by his paying from time to time various drafts in excess of the amount stated, he should not now be permitted to take a contrary position, and in support of this contention the doctrine seems to be invoked that where the terms of a written agreement are in any respects uncertain or doubtful and the parties thereto have by their conduct placed a construction upon it which is reasonable, snch construction will be adopted by the court to give effect to the intention of the partied.

Holmes et al v. Stearns Lumber & Export Co., 66 Fla. 259, 63 South. Rep. 449; Mizell Live Stock Co. v. J. J. McCaskill Co., 59 Fla. 322, 51 South. Rep. 547; Scotch Mnfg. Co. v. Carr, 53 Fla. 480, 43 South. Rep. 427; Shouse, Admr., v. Doane, 39 Fla. 95, 21 South Rep. 807. This rule, however, is applicable only in cases where there is doubt as to the meaning of the terms employed to express the agreement.

If the meaning is clear and free from ambiguity, the contract will not be changed by- an erroneous construction placed upon it by the parties thereto, and an erroneous construction by them will not prevent the court from.giving the true construction. The province of the court is to give effect to‘the contract which the parties have made. 9 Cyc. 590; A. & St. A. Ry. Co. v. Thomas et al., 60 Fla. 412, 53 South. Rep. 510; St. Paul & D. R. Co. v. Blackmar, 44 Minn. 514, 47 N. W. Rep. 172; Holston Salt & Plaster Co. v. Campbell et al., 89 Va. 396, 16 S. E. Rep. 274; Sternberg et al. v.

Brock et al., 225 Pa. 279, 74 Atl. Rep. 166. So that if the language employed in the agreement is free from ambiguity effect will be given to such language, although it may result in placing a construction upon the instrument under consideration different in its effect from the practical construction which may have been placed upon it by the parties themselves.

If there is room for construction the rule here is “that a liberal construction should be indulged to determine the intent of the parties, and that when that intent is discovered the guarantor is entitled to a strict construction in the working out of the intent.” Punta Gorda Bank v. State Bank of Ft. Meade, 52 Fla. 399, 42 South. Rep. 846. Several rules seem to have been formulated in other-jurisdictions for testing the question of whether instruments similar in their purpose to the one under consideration constitute continuing obligations.

These rules are stated and varous authorities on the point assembled in'a note to the New Jersey case of Newcomb v. Kleeben, reported in 39 L. R. A. (N. S.) 724. If we assume ,t|iat this court is committed by the case of Hawkins v. Mitchell 34 Fla. 405, 16 South.

Rep. 311, to the rule that the words of a guaranty' are to be taken as strongly again&t the guarantor as the sense will a limit, it would not affecf £ke holding in this case, for the reas9n that the words of the instrument under consideration seem to us to be sufficiently ’ clear and free from doubt' in their meaning as to result in the inclusion that it was the purpose of the obligor to limit his liability under this obligation to the amount stated and that it was not his1 intent to create a cpptinumg guaranty of this amount to run for an indefinite period of ’time.

The court below, therefore, rightly held tliaf the declaration did not state a cause of action and properly' sustained the demurrer thereto. The judgment will be affirmed. Whitfield and Ellis, J. J., concur. Browne, C. J., and Taylor, J., dissent.