Robertson & Govanne Contracting Co. v. Aetna Accident & Liability Co.

Roraback, J. The defendant insists that this obligation should be construed under the provision of chapter 157 of the Public Acts of 1911 (p. 1423), relating to an attachment bond given by order of a judge. This statute provides that “if the said-shall pay any judgment that may be recovered against him in such action not exceeding the amount of—¡-dollars (the amount of damages demanded by said writ), or in default of such payment, shall pay to the officer having the execution issued on such judgment, on demand, the actual value of the interest, not exempt from attachment and execution, of the said-in said attached property at the time of said attachment, not exceeding said amount of-dollars, then this bond shall be void, but otherwise in full force and effect.” It is important to notice that this bond does not follow the language of the statute. It omits the alternative portion, which provides that “in default of such payment, shall pay to the officer having the execution issued on such judgment, on demand, the actual value of the interest, not exempt from attachment and execution, of the said-in said attached property at the time of said attachment, not exceeding said amount of-dollars.” The record discloses that this instrument was not given in compliance with an order of a judge of the Superior Court under the procedure pointed out by our statutes. It appears that Durkin and Laas, by their attorneys, made an application for the substitution of a bond for the attachment which had been made in the proceedings against them, but, without waiting for the formality of an order of a judge in the matter, as provided by statute, the bond as now written was pre *133 pared and executed by the defendant company. The form used was one adopted by the company in the transaction of its business. It was delivered to and accepted by the plaintiff as a substitute for the attachment which was then dissolved. “A voluntary bond, entered into by competent parties and for a lawful purpose, not prohibited by law, and founded upon a sufficient consideration, is good and valid at common law.” 8 Cent. Dig. p. 68, Bonds, § 40½; Emanuel v. McNeil, 87 N. J. L. 499, 503, 94 Atl. 616, 618. There is nothing unlawful in any of the provisions of this obligation. The statute relating to this subject does not prohibit such an undertaking. This was a bond the condition of which complied with a part of the provisions of the statute. To this extent the obligation was good, notwithstanding it omitted to name the condition of the statute upon which the defendant now rests its case. Official or statutory bonds will not be declared invalid by the courts, except on the most satisfactory grounds. Of course, if a statute which prescribes the conditions and terms of such bonds declares that all bonds not taken pursuant to it shall be void, they will be held void; but unless the statute expressly so provides, only those parts or conditions of the bond that are contrary to the provisions of the statute will be void. All the rest of the conditions will be held good, and the obligors will not be allowed to escape liability because the bond does not conform in all things with the requirements of the statute. 4 R. C. L. pp. 53, 54. This bond should receive a reasonable interpretation. To reach such a conclusion we must resort to the language which was used in the obligation. As it now appears, we have no right to hold that the parties to this undertaking intended to insert a provision *134 materially different from that which the language used would indicate. To do this would be, in effect, to make a new and different contract. This we cannot do. There is no error. In this opinion the other judges concurred.