Beeson v. Patterson

The opinion of the court was delivered by Thompson, J. The covenant on which this suit was brought, was one of indemnity against liability in a suit brought in the District Court of Allegheny, by Richard Beeson against the plaintiff below, on an agreement between them, involving interests of the defendant. It was a covenant, that if the plaintiff would defend that suit, and if judgment should be recovered against him, the defendant would “ be responsible to, and refund to the plaintiff the whole amount of debt and costs that may be recovered in said case.” There was sufficient consideration for this contract, and no question exists here as to that. The defence of the suit and recovery against plaintiff were admitted by the plea of covenants performed, with leave, &c. But a recovery was resisted, on the ground that the recital of the matter to be indemnified against, was different from that upon which the recovery was sought to be had. In other words, that the generality of the covenant was to be restrained by the recital in a sort of preamble to it.' It would be an extremely strict construction so to hold. The suit of Beeson v. Patterson might well be described as brought to recover costs, when we look at the instrument on which it was brought, and which is expressly referred to in the recital contained in' the contract of the defendant. By that agreement, Patterson stipulated that, in ease the executor should be adjudged to pay the costs incurred by contesting Mrs. McNabb’s claim, and should have to pay any more money than he had in his hands for that purpose, the same should be repaid by the estate of Jesse Beeson, the plaintiff in error. It was to indemnify Patterson against this contract, that the covenant declared on was entered into. That contract was to indemnify in case of a fruitless resistance of Mrs. McNabb’s claim. Neither suit nor suits were mentioned in that [27] contract. There were, however, four suits in all by Mrs. MeNabb, and although all were not contested, there were costs in all. Now, while the recital speaks of the suit brought in the District Court of Allegheny county, to recover certain costs alleged by the plaintiff therein to have been paid by him in a certain case in the Common Pleas of Fayette county, it also refers to them as costs indemnified against by the plaintiff, which was an agreement, not to refund or repay costs on one or any particular case oleases, but to refund in case of an unsuccessful resistance to the claim. It is, therefore, plainly an indemnity against the stipulation therein recited; and as that was to pay in case of unsuccessful resistance, the result then, in that suit, should fix the liability in this. ' But it is said, that there was interest also recovered on that agreement, as well as costs; and that as interest is not mentioned in the recital to this covenant of indemnity, it cannot be recovered here. As the covenant is general, to pay the “ debt and costs” that may be recovered in that case, it cannot with much plausibility be argued that it is restrained by something that does not appear and does not exist. It is true, costs alone are mentioned in the recital; but if it had been intended that costs only were to be refunded, it would have been very easy to have said so, instead of using the words, “ the whole amount of debt and costs that may be recovered in said case.” It is more than probable that the narr. had never been adverted to ; at the time the paper was drawn there is no proof that it had been; and that the recital was merely an identification of the suit' referred to, rather than an intended limitation of the covenant. But, suppose all this to be uncertain, by reason of the ambiguity patent in the instrument, 'the common law rule of interpretation must then be resorted to, viz., that the instrument being the deed of the party to be bound, must be taken most strongly against him. This would be decisive against the defendant below. The rule in Pothier cited that, “ however general the terms may be in which an agreement is conceived, it only comprehends those things in respect to which it appears that the contracting parties proposed to contract, and not others they never thought of,” is a rule in explaining- intent, but it has no force where the matter intended to be contracted about is not uncertain, but the extent of the obligation only may be. In such a case, if it be contended that the words used do not express the intent of the party, and there be no explanation of them, their binding force must, of necessity, be ascertained through the rules of law applicable to such a contingency. Here, indemnity against a recovery in a prior agreement, made for the benefit of the defendant, was the object of the guarantee; the covenant is sufficiently broad to cover it, and we see nothing in the recital to limit it. Judgment affirmed.