Magerstadt ex rel. T. A. Shaw & Co. v. Field

Mr. Presiding Justice Smith delivered the opinion of the court. The record presents two controlling questions: 1st. Are the questions arising upon the rulings of the trial court in excluding the evidence offered by the plaintiff open to review, the same not having been specified in plaintiff’s motion for a new trial? 2nd. If the rulings excepted to are before the court, then the substantial question is, whether a surety on a replevin bond given to procure the execution of an existing original writ of replevin directed against Wohlhueter & Champness can be held liable for damages resulting from the replevin of the property described in the bond from T. A. Shaw & Company, under and by virtue of an amended writ of replevin issued on the following day in the same cause without the knowledge or consent of the surety, and directed against T. A. Shaw & Company. In our opinion, the questions arising upon the rulings of the trial court in excluding the documentary evidence and all other evidence offered by the plaintiff in the action, are open to review, in this proceeding, although the plaintiff in the action did not specify such rulings in his written motion for a new trial filed in the action. Where the court improperly excludes from the consideration of a jury evidence which has been admitted, and which tends to prove the issue in the case, it is not necessary, in order that such action of the court may be assigned as error in the Appellate Court, that a motion for new trial should have been made. Smith v. Gillett, 50 Ill. 290; Wiley v. Town of Brimfield, 59 id. 306. We come now to the main question involved in the case, namely, whether the trial court erred in excluding the evidence offered by the plaintiff, and holding as a matter of law that no recovery could be had under the replevin bond sued upon, on account of the goods taken under the amended writ of replevin from T. A. Shaw & Company, upon the ground that T. A. Shaw & Company were not parties to the replevin suit at the time the replevin bond was given, and were not protected thereby. In the solution of this question we must first determine the true interpretation of the contract. The ends of justice are best subserved by the enforcement of contracts according to the plain intent of the parties to them. “The rule of construction of all contracts of voluntary obligation, whether as to sureties or principals, is to apply that meaning and give that interpretation to the words used, in the light of the whole instrument, together with any side light, in case of ambiguity, as will carry out the evident intent and purpose of the parties thereto; when the construction of the contract is thus ascertained and its meaning determined, then the rule of strictissimi juris applies as to sureties on such contract, and not till then. Statutory bonds taken by court officers will be liberally construed. Courts will look to the meaning of the parties as collected from the instrument itself. * # * A bond in replevin will be liberally construed for the purpose for which it was given. Cobby on Replevin, Sec. 1282.” Hotz v. Bollman Bros. Co., 47 Ill. App. 378; Best Brewing Co. v. Klassen, 85 id. 464. The manifest object of the bond required and prescribed by the Replevin Act (which enters into and forms a part of the bond) is to secure the prosecution of the replevin suit in which it is given “to effect, and without delay, and make return of the property, if return of the property shall be awarded, and save and keep harmless such sheriff * * * in replevying such property, and * * * for the payment of all costs and damages occasioned by the wrongfully suing out of said replevin,” as expressed in the language of Section 10 of the Act. In other words, the statute providing for the bond, and under which it was given, contemplates the successful prosecution of the suit without delay, and a return of the property taken under the replevin writ, if a return shall he adjudged, and indemnity against any injury that may result from the wrongful taking of the property and the delivery of the possession thereof to the plaintiff in the action. The statute also contemplates that the proceedings in which the bond is given may be amended, and that such amendment shall not affect the protection given by the bond except where the legal effect of such amendment is to enlarge the liability thereunder. The statute enters into and forms a part of a replevin bond in legal contemplation, and the parties are conclusively presumed to intend what the statute provides. Construing the bond declared on liberally, with a view to promote its object under the statute and the intent of the law and of the parties, and to provide for and assist them in obtaining justice (McGlasson v. Bradford, 7 Bush. (Ky.) 250), the indemnity furnished by the bond covered the property described in the affidavits and the bond, and the plaintiff’s right and title thereto as against the original defendants, Wohlheuter & Champness, and also as against their privies, who had rights in the property through Wohlhueter & Champness and under their right and title. If the property described in the bond and original writ had been taken by the sheriff under the original writ, and Shaw & Company had then intervened in the replevin suit and asserted their right to the property as pledgees from Wohlhueter & Champness, there can be no reasonable doubt, we think, that the bond in question would have operated to secure their rights in the property. McGlasson v. Bradford, supra; Tedrick v. Wells, 59 Ill. App. 657; Katz v. American B. & T. Co., 86 Minn. 168. We are unable to see that the mere fact that the plaintiffs in the replevin suit moved for leave to amend the proceedings by bringing Shaw & Company into the case worked any change in legal effect as to the relative rights of the parties in and to the property described in the replevin papers, including the bond, from the situation produced by the intervention of Shaw & Company, as above supposed. We therefore hold it was the true intent and meaning of the bond that the indemnity thereby given should extend to and include the property described therein and those in possession of or interested in the property through or under the asserted title and right of Wohlhueter & Champness. Having thus determined the true construction and legal intent of the parties to the bond, the rule of strictissimi juris applies as to the surety on the bond. Under the proof offered we are of the opinion that the bond sued on covered and protected the property taken under the amended writ of replevin. It was the same property described in the original affidavit and original writ and the bond. Upon the amendment being made, the amended writ became the writ of replevin in the case. The same titles to and rights in the property were involved after the amendment as before. The plaintiffs failed to prosecute their suit to effect and make a return of the property, and save and keep harmless the sheriff, the plaintiff in the action under review, in replevying the property, and thereby a breach of the bond was made. For this breach we think the plaintiff had a good cause of action, for, though not a covenant in express terms to Shaw & Company, it inured to their benefit and operated to secure their rights in the property through the sheriff as might be adjudged to them in the replevin action. McGrlasson v. Bradford, supra; Katz v. American Bonding & Trust Co., supra; Hanna & Finley v. International P. Co., 23 Ohio St. 622. When the property described in the replevin bond is taken under a writ of replevin and delivered to the plaintiffs, who retain the same, as shown in the record before us, the plaintiffs and their surety are es-topped to deny the authority of the sheriff to take the property. Fahnestock v. Gilham, 77 Ill. 637; McFadden v. Ross, 108 Ind. 512; Cady v. Eggleston, 11 Mass. 282; Jennison v. Haire, 29 Mich. 206. In onr opinion the trial conrt erred in sustaining the objections to the evidence and in giving the instruction for the defendant. The judgment is therefore reversed and the cause is remanded for a new trial. Reversed and remanded.