Fidelity & Deposit Co. v. Mahlen

ST. PAUL, J. One E. R. Darrow entered into a contract to erect an apartment house and remove a residence for one Mrs. Kate Wells, for the price of $23,000. He furnished two bonds, eách for $23,000, one for the faithful performance of the contract, and one for the payment of all workmen and furnishers of materials; and plaintiff became his surety on both bonds. I. On the same day the defendants entered into a contract of indemnity towards plaintiff, the condition thereof being that, whereas plaintiff had furnished the two bonds aforesaid, therefore said indemnitors agreed (in effect) to hold said plaintiff harmless from all loss and liability on “said bond [singular]” up to the sum of $4,000. II. Thereafter plaintiff, by reason of the defaults of said Darrow, incurred liability and suffered loss, as surety for said Darrow, in a sum exceeding $4,000; and plaintiff seeks herein to recover the amount of said loss from defendant (up to the' sum of $4,000) upon the aforesaid contract of indemnity. And the defense is, in substance, that the alleged contract of indemnity is ¡voyl for uncertainty, because it referred to only one of said bonds without mentioning yvbich. III. The trial judge had no difficulty in concluding that the contract of indemnity referred to both bonds; nor have we. The use of the singular, “said bond,” whereas two bonds had been given, was a clerical error patent on the face of the. instrument. There is no radical difference between the method to be pursued in construing and interpreting contracts and that which prevails with reference to statutes. R. O. C. 1946. In either case, the object is to grasi> the intention of the author; and as to statutes, our Code cautions us to lay no undue stress upon “the niceties of grammar rules” (It. C. C. 14), and that “the singular is often employed to designate several xiersons or things; the heir, for example, means the heirs, where there are more than one" (R. C. C. 3556, subd. 2). Hence we would have no difficulty, when construing a statute, in holding that “said bond (singular)” meant “said bonds (plural),” where there was more than one bond previously referred to. And that is not peculiar to this jurisdic *1075 tion. Thus, in State ex rol. Woodward v. Skeggs, Prohate Judge, 154 Ala. 249. 40 So. 268, the words “said bill [singular]” was held to mean “said bills [plural],” when ten (legislative) bills had just previously been mentioned in the legislative journal. In Ellis v. Whitlock, 10 Mo. 781, it was lield that the words “preceding section [singular]” meant '‘preceding sections [plural],” where several sections on the same subject preceded. And in People v. Aurora, 84 Ill. 157. it was held that “city [singular]” meant “cities [plural],” when there were several cities in a single judicial district ■from which one judge was to be elected. On the other hand, in Jocelyn v. Barrett, 18 Ind. 128, “the above-mentioned acts [plural]” was recognized as a mere clerical error, when, in fact, but one act was previously referred to; and in Hogan v. State, 36 Wis. 226, it was held that an act “dangerous to others [plural]” included hn act dangerous even to only one other [this in a criminal statute, to be construed strictly]. We think the judgment below was correct. Decree. The judgment appealed from is therefore affirmed.