Frankel v. Stern

By the Court, Belcher, J.: The action is based upon an undertaking, the material portions of which are as follows : “Sow therefore, we, the undersigned, residents of the City and County of San Francisco, in consideration of the premises and of the issuing of the said attachment, do jointly and severally undertake, in the sum of two thousand two hundred and twenty-five dollars, gold coin, and promise to the effect that if the said defendant recover judgment in said action, the plaintiff' will pay all costs that may be awarded to the said defendant, and all damages which he may sustain by reason of the said attachment, not exceeding the sum of two two hundred and twenty-five dollars, gold coin.” The case was tried by the Court without a jury, and judgment rendered for the plaintiff for oiie thousand and eighty-one dollars and ten cents. The appellants insist that upon the face of the undertaking they are liable only for two hundred and twenty-five dollars, and that no judgment for more than that sum could be rendered against them, unless the undertaking were first reformed by inserting in the blank left between the words “two” and “two,” the word “thousand,” claimed by the fc plaintiff to have been accidentally omitted. The statute (Prac. Act, Sec. 122,) provides that'the Clerk, before issuing an attachment, shall require an undertaking [171] on the part of the plaintiff, in a sum not less than two hundred dollars and not exceeding the amount claimed by the plaintiff, to the effect that if the defendant recover judgment the plaintiff will pay all costs that may be awarded to the defendant, and all damages which he may sustain by reason of the attachment, “ not exceeding the sum specified in the undertaking.” The sum “ specified in the undertaking ” in this case is two thousand two hundred and twenty-five dollars, and it is apparent, we think, that the Clerk intended to require, and the sureties to make, an undertaking in that sum. It is an original independent contract on the part of the sureties, and must be construed in connection with the statute which authorizes it. Looking at the undertaking and the statute, no one can doubt as to what was the intention of the parties. This being so, the omitted word may be supplied and the contract read as if it had been expressed. To this effect are the authorities. Thus, in The People v. Judges of Oneida, 1 Wend. 28, the Court say: “In the construction of a written instrument the whole is to be taken together, and effect given to the intent of the parties, if that can be discovered from the general scope and tenor of the instrument.” In Teall v. Van Wyck, 10 Barb. 379, the action was upon an appeal bond, which stated in the condition that the appeal was to the Common Pleas, when in fact it was to the County Court. The Court held the bond good, and upon this point said: “ Wlien the words of a bond are not sufficiently explicit, or if, literally construed, the words would be nonsense, it must be construed with reference to the intention of the «parties. In doing this it is allowable to depart from the letter of the condition, to reject insensible words, and to supply obvious omissions.” In Coles v. Hulme, 8 Barnw. & Cress. 568, the action was commenced upon a bond, the con [172] dition of which recited an indebtedness in various sums of money, which were stated in pounds sterling. In the obligatory part of the bond the word pounds was omitted. In holding the bond good Lord Tenderden, C. J., said: “In every deed there must be such a degree of moral certainty as to leave in the mind of a reasonable man no doubt of the intent of the parties. The question in this ease is, whether there is in this bond that degree of moral certainty as to the species of money in which the party intended to become bound. I thought at the trial there was. The obligatory part of the bond purports that the obligor is to become bound for seven thousand seven hundred, bio species of money is mentioned. It must have been intended that he should become bound for some species of money. The question is, whether from the other parts of the instrument we can collect what was the species of money which the party intended to bind himself to pay.” And looking at the recitals in the condition of the bond, and seeing that they were to pay pounds sterling, he further said: “That being so, I cannot entertain a doubt that the intention was that the obligor should, in order to secure the payment of those sums, become bound in a penalty consisting also of pounds sterling; and if that were the intention, then the bond ought to be read as if the word pounds were inserted in it.” In the same case Bayley, J., said: “It has been decided, that in furtherance of the obvious intent of the parties, even a blank may be supplied in a deed. In Waugh v. Russell, 1 Marshall, 214, the word hundred was omitted in the latter part of the condition of a bond. It was held that it might be supplied, and that in pleading the bond might be described according to its legal effect, as if the word hundred had been inserted in it. I think in this case * that it is obvious that the obligor meant to bind himself in a penal sum consisting of pounds sterling, and, therefore, that the omission of the word pounds may be supplied.” [173] We cannot reverse the judgment on the ground that the damages, as found by the Court, are excessive. The testimony tended to show that the property, when taken, was worth one thousand five hundred dollars, or thereabouts, and that when returned it was only worth four hundred and fifty dollars. Upon these values the Court estimated the damages. There can he no large error in the estimate; and we are not sure there is any. Judgment and order affirmed. Mr. Justice Niles did not express an opinion.