Hamner v. Cobb , 2 Stew. & P. 383 ( 1832 )

Saffold, J.

The action was debt, brought.by the defeadc:it in error, against Hatnner and his securities, on an injunction bond, the condition of which was alleged to have been forfeited. The declaration alleges tint said Hammer and others, “ acknowledged themselves to be held and firmly bound, unto the (then) plaintiff, in the sum of six hundred and sixty six and two thirds ce?its, to be paid when requested, inserted by mistake, in the said writing obligatory, instead of six hundred and sixty-six dollars and sixty six and two-thirds cents — the last mentioned being the sum which it was then and there intended, and agreed, by the said plaintiff and defendant, should be inserted in the said writing obligatory,” &c., which said writing obligatory, as alleged, was, and is subject to. a condition, thereunder written, whereby, after reciting the circumstances of the bill having-been filed, states, that, thereby, said Cobb was enjoined and restrained from trading off, or bringing suit, on a note given by said Harnner, for three hundred thirty-three and one-third dollars: and, if said Harnner should, in case of a dissolution of said injunction, pay and satisfy said Cobb, all damages, &c, the bond-should be void. The declaration further alleged the dissolution of the injunction, and damage, bj means of Hamner’s insolvency, to the amount of three hundred thirty-three and one-third . dollars, with interest.

To the declaration, iu substance, as above stated* tho [)! lint iff in error demurred; which demurrer the court overruled: and, on nil dicit, gave judgment for four hundred and fifty-five dollars and ten cents:

This judgment is assigned for error.

Under the circumstances stated, was the Circuit Judge authorised to infer the existence of the mistake; that it consisted in the insertion of six hundred and sixty-six and two-thirds cents, as the penalty of the bond, instead of six hundred and sixty-six dollars and sixty-six and two-thirds cents, as intended and agreed upon, by the parties; and, on demurrer, to sustain it, as a writing obligatory, having the force and virtue thus ascribed to it ?

Doubtless, many cases of ambiguity may occur;’ and, in respect to such as are apparent on the face of the instrument, and are, consequently, entitled patent ambiguities, the courts are competent, by rational interpretation, to reconcile the uncertainty or inconsistency of the instrument, and to declare its legal effect. In case of latent ambiguity, or such mistakes or inconsistencies as cannot appear from an inspection of the instrument, the court is incompetent to decide. If contracts, involving such, can be sustained and enforced, according to the intention of the parties, it must be by the introduction of evidence before the jury, explanatory of the intrinsic circumstances, and reconcilable with the written instrument.

Here, it will be observed, the sum of money which is supposed to,have been mistaken, was not intended to have been inserted in the instrument more than once, nor was it necessary. If the amount be mistaken, the face of the paper affords no certain indication of it. • Where it becomes necessary to repeat the amount, name of any person or thing, or other matter, in the same instrument — and the same appears, obviously to have been attempted, but a material discrepancy is found to exist — it may frequently happen, from the nature and object of the instrument, together with the context, that no reasonable doubt can be entertained, as to the intention of the parties,— that, the instrument being contradictory or inconsistent with itself, according to its liberal import, the mistake may be so clearly indicated, by the references alluded to, as to leave no doubt as to what the proper correction should be. In such cases, the court is permitted, by law, from an inspection of the instrument alone, so to construe it, as to preserve its force, and effectuate the intention of the parties to it. But, it is a delicate power, to be resorted to, only under such circumstances as necessarily demand its exercise, for the advancement of justice; and, where the intention is sufficiently indicated to enable the court to ascertain it, with reasonable certainty. The condition of the bond is, also, set out, in the declaration, which shews the object to have been to enjoin and restrain Cobb, “ from trading off, or bringing suit on a note, given by Hamner, on, or about the second December, 1823, for three hundred thirty-three and one-third dollars.” We recognise, as a general rule pf Chancery practice, on granting injunctions in similar .cases, for the Chancellor, by his fiat, to require bond and security, in a sum, about double the amount .to be enjoined. The precise sum, however, is in his discretion, according to the apparent necessity; as was, also, the requisition .of any bond, at the time of obtaining this injunction. There does, truly, appear great inconsistency, in -requiring a bond, in only the amount of this, to enjoin proceeding, for the amount of the note in question. It is also suggested, in argument, that a reference to the fiat, would probably shew, that the sum, intended as the penalty of the bond, was six hundred sixty-six and two-thirds .dollars, instead of so many cents; and that this-sum, being just double the amount enjoined, by so construing the bond, all the proceedings become consistent.

I am free to admit, that the circumstances warrant the conclusion, that such was the intention of at least, the clerk, who took the bond; and that it is a fair presumption, that Hamner, who was the principal, and familiar with the circumstances — and, perhaps, his securities, also — knew such to have been the intention ; nor do I think it improbable, that they may have been under the impression afterwards, that the bond they had signed, was for the larger sum.

On the contrary, it is to be observed, the fiat alluded to, does not appear of record ; and, it is questionable, if it could, legally, have become a part of it,— therefore, that reliance must be left entirely out of view.

Respecting the inconsistency in the.two sums mentioned in the instrument, (the bond and the condition,) it is to be recollected, they evidently were not intended to be the same, and to suppose they were, would defeat the action, no less than any other hypothesis. A bond, according to its tenor' and effect, may be legal and valid, though a condition which was intended to qualify it may be void. Moreover, it is clear, that an intention by any one, to take an instrument of a particular description, and a belief, that it had been effected, cannot give the desired validity to the instrument, (especially in a court of law,) if, through mistake, or inadvertence, or other cause, the act has not been done.

All-the most essential rights of property depend on the sacred character of bonds and other instruments; consequently they are held inviolate. Admitting that the persons whose names appear on this instrument, can fairly be presumed to have intended the execution of one as far different as is alleged’,' it by no means follows that, they are legally bound, according to this supposed intention. The inviolable nature of such instruments cannot be preserved if any tribunal has authority to remodel or vary them, according to the emergency, or probable intent of the parties. We can not be certain that these securities, at least, who may have been ignorant of the facts, may not have particularly noticed the amount of the bond, and been induced to join in the execution alone from the conviction that the amount was so small' that the injury could not be great. The contrary can not appear without the introduction of parol proof to control the instrument, if in that way it could': and such would be. a precedent of dangerous tendency,. and one inadmissible by the established rules of evidence.

Of the several cases cited in argument on the part of the defendant in error, that which appears most favorable to him, is considered fairly distinguishable from this. It is the case of Colburn et al. vs. Downs^a, That was a suit by scire facias, on a bail bond, payable to the plaintiffs, Colburn and Gill, a mercantile firrp. The defendant having denied by his plea, that he ever became bail, on the trial the plaintiffs produced the bail bond, containing a misnomer as to the Christian names of both the plaintiffs. If was in this, that their true names were James L. Colburn and William, Gill, and so appeared in the scire facias'. but by mistake had been inserted in the bond John S. Colburn and George W. Gill, The bond was objected to as evidence, but on a further inspection of it,the plaintiffs were therein described as “ of Boston, in the county of Suffolk, merchants and co-partners in trade, jointly negotiating in business, under the firm of Colburn & Gill,” from which the court held the description of the plaintiffs sufficiently certain to afford validity to the bond. In that case, it is to be observed, the plaintiffs, whose Christian names only had been mistaken, were otherwise so far described by their mercantile connection, " the true title of. their firm, and place of business, as to leave no rational doubt of their identity; so that, admitting the authority of that case, it is not decisive of this. The' same may be said of the other case cited in argument on the same side. ,. '

We are of opinion the judgment below must be reversed.

a 10 Mass. R. 20.