
    LIVELY vs. ROBBINS.
    [ACTION ON PROMISSORY NOTE, BY PAYEE AGAINST MAKER.]
    1. General rules for construction of contracts. — In tlie construction of contracts, tbe cardinal rule is to effectuate, if possible, tbe intention of tbe parties; and in arriving at that intention, a greater latitude of construction is allowed, where tbe contract appears to bave been written by an ignorant person, or one unskilled in tbe use of language. The language is to be construed in its popular sense, unless it is technical in its signification; and if tbe contract is susceptible of two constructions, it is to be construed most strongly against tbe party promising.
    2. Construction of special stipulation in note — Where an enrolled conscript procured a discharge from military service, in October, 1862, by putting in bis stead a substitute; and executed to bis substitute a promissory note, with sureties, payable on tbe 25th December, 1862, and containing a stipulation in these words: “ Tbe condition of tbe above note is, that if tbe conscrip should take J. B. R., tbe note to be ' void; if tbe consarip does not take him, this note to remain in full force and virtue;” and when again enrolled, in February, 1863, was discharged on tbe ground that be was a miller, — held, that tbe condition on which tbe note was to become void bad not happened. (Phelan, J., dissenting.)
    
    Appeal from the Circuit Court of Jefferson.
    Tried before the Hon. Wm. S. Mudd.
    This action was brought by Joseph B. Lively, against John B. Robbins, L. M. Robbins, and Thomas B. Robbins; was commenced on the 13th August, 1868; and was founded on a promissory note, executed by the defendants, which was in the following words : “ By tbe 25tb day of December next, we, or either of ns, promise to pay Joseph B. Lively, or bearer, the sum of seven hundred dollars, for value received of him. The condition of the above note is, that if the conscrip should take J. B. Bobbins, the note to be void; if the conscrip does not take the said J. B. Bobbins, this note to remain in full force and virtue; this 18th October, 1862.” The record, does not show what pleas were filed.
    
      “ On the trial,” as the bill of exceptions shows, after the plaintiff had read in evidence the note on which the suit was founded, “ the following were agreed on by the parties as the facts: Said instrument was executed by the defendants on the day the same bears date. Said J. B. Bobbins was conscripted, and mustered into the service of the Confederate States, at Talladega, on the 7th September, 1862. The plaintiff agreed to, and did enter the service, as a substitute for the said J. B. Bobbins, on or about the 14th October, 1862, in consideration of the sum of two thousand dollars; of which amount, thirteen hundred dollars were paid in cash, and the above instrument was executed for the balance. The said J. B. Bobbins was thereupon discharged from the army, and returned to his home in Jefferson county, and commenced repairing his mill on or about the 16th October, 1862, and has remained at home since his return. After his return, said J. B. Bobbins was not enrolled by the conscript officers of the Confederate States, until the 1st February, 1868, and, when enrolled, was discharged on the ground that he was a miller; and has, since then, successfully claimed his exemption as a miller. Said Bobbins did not engage in keeping or running a mill until about the 15th December, 1862. At the execution of said instrument above set forth, said J. B. Bobbins was thirty-four years old, and plaintiff was thirty-eight years old. The call which the president was authorized to make for men between the ages of thirty-five and forty years, under the act of congress approved September 2, 1862, was issued on the 3d November, 1862.
    “ The above being all the evidence in the cause, the court charged the jury, 1st, that the condition attached to the note was to be construed to mean, tbat said note was to be void if said J. B. Bobbins became legally subject to military service as a conscript before tbe maturity of said note; 2d, tbat, under tbe admitted facts, tbe plaintiff bimself became subject to military service after tbe 3d November, 1862, and said J. B. Bobbins also became subject to military service after tbat time, and tbe exemption granted to bim by reason of tbe substitution of tbe plaintiff expired after tbat time; and, 3d, tbat it was not necessary for tbe defendants, in order to defeat a recovery on tbe note, to sbow tbat said Bobbins bad been conscribed, and actually placed in tbe military service.”
    Tbe plaintiff reserved exceptions to these charges, and be now assigns them as error.
    Porter & Mártir, for appellant.
    J. 0. Morrow, contra.
    
   STONE, J.

In tbe construction of contracts, tbe cardinal rule is, to effectuate, if possible, tbe intention of tbe parties; and where tbe contract appears to have been drawn up by a person unskilled in tbe use of language, greater latitude of construction is-permissible, in arriving at tbat intention. — See Shepherd’s Digest, 497, §§ 124,126. When a contract admits of two constructions, one of which will destroy, and tbe other uphold it, tbe latter construction must prevail; thus construing tbe contract most strongly against tbe party promising.—Shepherd’s Dig. 499, § 146; Livingston v. Arrington, 28 Ala. 424. Language, which is not technical in its signification, should be construed in its popular sense.

Tbe phrase, “if tbe conscrip should take J. B. Bobbins,” is certainly not very definite in its meaning. We think, however, tbat under tbe rules above laid down, tbe circuit court erred in its construction of tbe contract declared on. Tbe parties could not have meant, “if tbe conscript law take J. B. Bobbins,” then tbe note to be void. Tbe “conscript law” bad ah’eady taken bim, and be was purchasing bis exemption from its operation. A more reasonable solution of tbe imperfect language employed is, that the parties bad in view tbe actual placing of Mr. Bobbins in tbe conscript service. Conscription was wbat tbe parties were looking to, and providing against; and conscription, in its popular sense, means a finished, complete enrollment of tbe soldier in tbe public service; not simply tbe extension of tbe law so as to embrace bim. Mr. Bobbins bad been enrolled as a conscript, and was in camps; and be sought to obtain an exemption, by putting in a substitute. He paid bis money, and executed bis note, that be might get out of tbe conscript service, and remain out. Tbe unpaid part of tbe consideration was made conditional; not to be paid, if Mr. Bobbins was placed in tbe conscript service. He stipulated tbe event in which be was not to pay, and that event has not happened. He was not taken by tbe conscript officer, or tbe conscription — was not placed in tbe conscript service. He obtained a discharge from tbe service, by means of tbe substitute be put in, and be was not placed back in tbe service. Tbe contingency on which tbe contract was to become invahd, has not happened.

Beversed and remanded.

PHELAN, J.

I differ from tbe majority of tbe court upon tbe construction given to tbe note sued on, and concur with tbe judge below, in bolding that tbe words “ if tbe conscrip should take J. B. Bobbins,” &c., should be construed to mean, if the conscript law should take — that is, indude, or malee liable. I am of opinion tbe judgment below should be affirmed.  