Appellant sued appellee in several forms of action to recover damages for appellee's alleged wrongful foreclosure of a mortgage. Appellant, by the mortgage which he executed, had secured a loan of $8,000, due and payable five years after date, with interest at 7 per cent. Separate notes for the annual interest were given, and it was stipulated that upon a failure to pay any of said notes as they should severally fall due, or any part thereof, the entire debt should at once become due and payable. Appellant put in evidence all the notes made by him, the same being identical except in amounts and dates of maturity. The note out of which this controversy arose between the parties, the first of the series of interest notes, was as follows:
"$560.00. Greensboro, Ala., August 11, 1916.
"On the 15th day of August, 1917, after date I promise to pay to the order of the Vizard Investment Company, Inc., five hundred and sixty and no/100 dollars.
"Value received, negotiable and payable at the People's Bank of Marion, Marion, Alabama.
"And it is agreed that if the holder hereof shall deem it necessary to place this obligation in the hands of an attorney for collection then such reasonable attorney's fees as may be incurred in its collection by suit or otherwise, shall be paid by the undersigned. And all rights to exemption to personal and real property under the laws and constitution of this state or any other state, whether now existing or hereafter created, are hereby waived in behalf of this obligation by the makers and indorsers of this note.
"With interest after maturity at 8 per cent. per annum and exchange on New York, N Y
"[Signed] C. H. Dozier.
"Attest: "W. C. Dozier. "J. M. Dozier. "War Revenue Stamps, 12 cents."
Appellant then, proceeding upon the hypothesis that the note upon its face was ambiguous, offered to prove that at the time he signed the note he stated to the agent negotiating the loan for appellee, and the agent agreed, that the concluding clause in the note governed the payment of exchange only in the event there was default in the payment of the note, and that, if the note was paid at maturity, no exchange would be due, and, to quote the bill of exceptions in further definition of the question reserved:
"That the parties themselves had agreed on the construction of the doubtful term in the note at the time the note was executed or immediately after it was executed."
The court, on objection, declined to hear this evidence, whereupon appellant took a nonsuit with a bill of exceptions.
The ultimate and decisive question is this: Is the clause providing in this language, "With interest after maturity at 8 per cent. per annum and exchange on New York, N.Y.," ambiguous in respect to its provisions for the payment of exchange on New York?
Appellant refers to certain rules of construction, viz.: Where a contract is ambiguous, it will be construed most strongly against the party preparing it or employing the words concerning which doubt arises, and, where the parties to a contract have given it a practical construction by their conduct, such construction is entitled to great if not controlling weight in determining its proper interpretation, particularly where such interpretation is agreed on before any controversy. Hundreds of cases might be cited to sustain these propositions. 13 C.J. 544, 546. But they assume the presence of ambiguity, and, as we have said, the question here is whether the note is ambiguous in the respect under consideration.
The requirement that appellant should pay exchange on New York meant, of course, that appellee contracted to have appellant pay the cost of transmitting the money, when paid, to New York. We perceive no reason on the face of the stipulation why it should be read to mean that appellant was to pay the cost of transmitting the money to New York in the event the notes were not paid at maturity, but that he should not be at that expense in the event payment was made at maturity. The stipulation meant only that appellee wanted the value of its money in New York, whenever paid, and could mean nothing else. It hardly, therefore, involved the rule which, as stated in Drake v. Goree, 22 Ala. 409, and subsequent cases, holds that where a written contract, although complete in itself, contains a term which the court is unable to construe without the aid of evidence aliunde, it is proper to resort to such evidence for that purpose.
It is argued that since the stipulation for exchange is found in the same clause with the provision for interest after maturity at 8 per cent. per annum, and interest is a penalty, therefore the stipulation for exchange was introduced as a penalty for failure to pay at maturity. Interest, where not made the subject of express contract, is allowed by law as damages to compensate for the use of money. The loan in this case by contract bore interest until maturity at the rate of 7 per cent. per annum. A stipulation for interest at 8 per cent. on the principal after maturity seems to have been considered necessary, or useful at any rate, to exclude the conclusion that the principal would continue to bear interest at the lesser rate, if not paid at maturity. Substantially, the like stipulation in the interest notes served the same purpose, though these notes could not be made to bear interest unless and until default in their payment at maturity. But no *Page 423 similar purpose was to be served by the provision for exchange.
The brief also calls attention to the dislocation of the stipulation for exchange from its natural place at the end of the first clause of the note; but we do not perceive that the intervening matter has any relation to or effect upon the stipulation in question. The clause in which this provision is found lacks grammatical subject and predicate, as appellant notes in his brief, but its meaning is clear. It means nothing more nor less than appellant's promise to pay the debt evidenced by the note with interest — after maturity, in the case of the interest notes, because they could not bear interest before — and exchange on New York. The process by which it may be supposed to mean something else would suffice to cast doubt upon the meaning of any, the plainest, language. It would in effect abrogate the rule — which can by no means be done — that the court must come to the intention of the parties to contracts through the terms which the parties themselves have used, and, when a contract is plain and unambiguous, it cannot be so construed as to relieve a party from consequences deemed by him hard or unfair, contrary to its express provisions, nor can it be relieved against in the absence of fraud or other vitiating circumstances. Lee v. Cochran, 157 Ala. 311, 47 So. 581; Day v. Thompson, 65 Ala. 269.
We have thus disposed of the turning point in the case. Other questions to which some of the assignments of error are addressed need not be considered. The opinion of the court is that the judgment should be affirmed.
Affirmed.
ANDERSON, C. J., and McCLELLAN and GARDNER, JJ., concur.