Planters & Merchants' Bank of Huntsville v. Hill , 1 Stew. 201 ( 1827 )

JUDGE GAYLE

delivered the opinion of the Court.

The merits of this controversy seem to rest on the construction of the condition of the bond. The law of bailment arising on the implied contract of innkeepers and common carriers, can throw ho light on the extent of the obligation imposed by this contract. The parties here have made the contract for themselves, and must he bound according to their intention appearing on the face of the instrument, and not according to the principles of a contract implied by law. It is a reasonable and well established rule of construction, that the restrictive words in the first of several covenants, having the same object, shall be extended to all the covenants, although distinct. But an examination of the condition of this bond will render it apparent that, what in the arguments have been called absolute and distinct undertakings, following the first general condition of the bond, are nothing more than specifications, explaining the duties of the Cashier,, and stating almost all of them particularly. These specifi» cations of duty, taken collectively amount to no more than the general condition first stated, “ well and truly discharging all its-duties,” and at the conclusion of the condition, we find a repetition of the same matter, shewing the intention of the parties throughout, in the words “ performing promptly and faithfully all and singular, the duties, acts and things required of him in virtue of his office,’’ &c. To this condition or covenant, it cannot be denied that the restrictive words at the commencement, must apply, and yet this condition is here stated as absolutely and distinctly, as the preceding condition for safely ,and securely keeping all moneys deposited. What did the parties intend by the conditions, “ well and truly performing all its duties ?” certainly the duties which they themselves immediately afterwards specified as appertaining to the office. If the restrictive words be rejected from this enumeration of duties, the leading and most comprehensive covenant would be controlled, and indeed destroyed by the subsequent less important ones, and we should have to conclude that the parties intended nothing by its insertion.

The form of expression by which these specifications are connected with the first general condition, as by the participles, “ executing, keeping, paying,” &c. is immaterial, if it appear that these special matters amount to nothing more than what was included in the general condition. But here they are so connected by this form of expression, and the word.- enumerating particular duties, cannot according to any grammatical construction, convey a distinct meaning, unless taken in connexion with those which first express the general condition. Leave out those words, and how will the condition of the bond read? Now if the said William G. Hill shall well and truly, discharging all its duties, executing the orders of the Directors of said Bank, safely and securely keeping,” &c, To omit them would make the whole matter quite unmeaning.

It is evident from the very nature of the language, that it was not the intention of the parties to apply all the restrictions to each particular duty, but that .they are to be applied respectively to each, as from its nature, it may be susceptible of the qualification mentioned. Thus, if any one undertake that with fidelity, and to the best of his skill and ability, he will keep and pay over money, ability is to be applied to the keeping, and fidelity to paying over. This mode, in the structure of sentences, is used by the best writers, and promotes facility and conciseness in writing and speaking.

On the other branch of the argument, the Court have had no difficulty in coming to the conclusion that the pleas are defective in not setting out the place and circumstances of the robbery, so as to shew that Hill was acting in the discharge of his duty as Cashier, when it was committed. a The judgement must be reversed and the cause be remanded, for the purpose of giving the defendants an opportunity of amending their plea.

Judge White not sitting.