Shoup v. Sabin , 3 Alaska 51 ( 1906 )

GUNNISON, District Judge.

The courts are by no means unanimous as to the proper rule of construction to be applied in the interpretation of the obligation of a surety on an indemnity bond. The weight of authority, however, seems to be on the side of a strict reading of the contract. The rule thus supported is well stated in 27 Am. & Eng. Ency. of Law (2d Ed.) 441, as follows:

“A surety is entitled to stand upon the letter of his contract, and his undertaking is to be construed strictly in his favor, and is not to be extended by implication or inference beyond the fair scope of its terms.”

See, also, Miller v. Stewart, 9 Wheat. 680, 6 L. Ed. 189; Leggett v. Humphreys, 21 How. 66, 16 L. Ed. 50. The court in U. S. v. Cushman, Fed. Cas. No. 14,908, says:

“Nothing will be presumed beyond that which is substantiated by the positive facts presented.”

Applying to the bond in this case the canons of interpretation to which we have alluded, what do we find ? The evidence discloses the goods in the possession of the marshal, claimed by a third person, who presses his claim by suit. This defendant had obtained a judgment against the one from whom the marshal believed he had taken the goods. This defendant seeks to have the goods sold to satisfy his judgment. The marshal states to him the status of the goods, and refuses to proceed to make further disposition of them unless he shall be indemnified for possible liability that may arise from such action. The defendant, being informed of the situation, still insists on the sale of the goods to satisfy his judgment, and, in order to have his wish complied with, he, with these sureties, executed this bond. Is the bond phrased as the ordinary indemnity bond of this character? No. The bond recites that the goods and chattels are “alleged to belong to the said Joseph Levy, but claimed by other persons” — a clear recital of the status of the goods. Following this recognition of existing conditions, they agree, not in the ordinary phrases of such a bond, but that:

“If the said K. L. Sabin, Emery Valentine, and Samuel Blum shall protect the said United States marshal as aforesaid in the sale of said goods and chattels against all damages, suits, and costs arising thereon. * * * ”

Clearly that bond was intended to indemnify the marshal against any and all damages arising from the sale under the Sabin judgment. Nothing need be presumed here. The facts* evidence, and the very letter of the bond indicate beyond peradventure the intention of the parties to protect the marshal, should such conditions arise as have arisen. The position assumed by the defendants is, in the light of the foregoing, untenable.

The second, third, and fourth contentions of defendants lead at once into a realm of speculation and conjecture, whither the court will not follow. Whether or not the sale from Levy to Marks was void as in fraud of creditors may not be determined in this litigation. This court has heretofore, by its solemn judgment, determined that the levies by which Marshal Shoup took these goods were void, and decreed that Marks should be repaid by Marshal Shoup the value of the goods attached and sold thereunder. The judgment paid by this plaintiff was partially based upon the value of the goods sold on the Sabin levy and sale, by which Sabin profited. Under the facts and the bond, there is for defendants no escape from their liability.

Defendants urge, upon the question of the character of the judgment, that the bond sued upon is joint, and could only support a joint judgment. The Alaska Code of Civil Procedure (section 51, subd. 1) does not sustain defendants’ contention. It is there provided that:

“When the action is against two or more defendants and the summons is served on one or more, but not all of them, the plaintiff may proceed as follows:

“First, if the action be against defendants jointly indebted upon a contract, ‘he may proceed against the defendants served; * * * and if he recover judgment, it may be entered against all the defendants thus jointly indebted, so far only as it may be enforced against the joint property of all and the separate property of the defendants served. * * * ”

Clearly the statute contemplates the entry of several judgments in actions of this character, and the plaintiff is entitled thereto.

Let judgment be entered accordingly.