Green v. Walker , 37 Me. 25 ( 1853 )

Appleton, J. —

The defendant, as an officer, replevied the property in dispute, on a writ in favor of Daniel North, from the possession of the plaintiff, who commenced his action for such taking, on the ground that no such replevin bond as the statute requires has been given.

To justify the taking of property by virtue of a replevin writ, it must be averred and proved that a bond, for the return of the property replevied and for the payment of costs and damages, was delivered with the writ to the officer or was in his hands before the service was completed. The bond is the security required for the protection of the pei-son from whose custody the property is taken, and if not given in accordance with the statute, the officer is a trespasser.

That a bond was given in this case is admitted, but the plaintiff denies that it affords the security required, or that it can be regarded as a statute bond. The intention of the parties must govern in its construction. To ascertain that intention, in case of doubt, recourse must be had to the general purpose and object of the instrument. It may be assumed that the parties did not intend to enter into idle and nugatory stipulations. The presumption of law is, that they acted in good faith. Such a construction therefore should obviously be given, as will render the contract in question available for the purposes for which it was made, rather than such an one as will destroy its efficiency. In Bullen v. Wigge, 1 Saund. 65, the Court held that, to support the condition of an arbitration bond, they would transpose or reject insensible words, and construe it according to the intention of the parties. In Bache v. Proctor, Doug. 384, Bullen, J., approved a decision in the Common Pleas, where the condition of a bond was that it should be void if the obligor did not pay, .and performance being pleaded on the ground of the literal expression, the Court held that “ the palpable mistake of a word should not defeat the true intent of the parties.” In Waugh v. Bussel, 5 Taunt. 700, the insertion of the word “ hundred” was deemed an immaterial alteration in a bond, as, says Gibbs, C. J., " it is sufficiently manifest that the word 'hundred* is-there accidentally omitted, and what has preceded has sufficiently shown what was to be done. The sentence is made intelligible by the context.” In Coles v. Hulme, 8 B. & C. 568, in the obligatory part of the bond the word pounds was omitted; it merely stated that the obligor became bound in '7700, without stating what description of money. Lord Tenterden, C. J., says, " it appears that the intent was that the defendant should enter into a bond for securing P. Coles various sums of money described in these recitals as being composed of pounds sterling and other money of a smaller denomination. That being so, I cannot entertain any doubt that the obligor should, in order to secure the payment of these sums, become bound in a penalty also consisting of pounds sterling; and if that were so, then the bond ought 'to be read as if the word pounds were inserted in it.” In Loveland v. Knight, 3 C. & P. 106, Bayley, J., says, “ if on looking at the whole instrument, we see that there is a mistake and the context shows what it should be, we are bound to read it correctly.” “When a word is omitted in the condition of a bond without which the condition is insensible, if it appears from other parts of the bond what the meaning of the parties was, the Court will supply or add the word to the condition,” per Green, J., in Kincannon v. Currel, 9 Yerg. 13. So a senseless or repugnant condition will not affect the true intent of the bondas if the condition be that the obligor do not pay. Stockton v. Turner, 7 J. J. Marsh. 192.

“ Where the words of a bond are not sufficiently explicit,” says Parker, J., in Teal v. Van Wyck, 10 Barb. 379, “or if literally construed, their meaning would be nonsense, it must be construed with reference to the intention of the parties. In doing this, it is allowable to depart from the letter of the condition, to reject insensible words and to supply obvious omissions.”

The bond in this case gives the names of the parties to the replevin suit, describes the property and its value, and is for the required sum. It specifies the name of the magistrate before whom, and the time when, and the place where the cause was to be heard, and conforms in all respects to the requirements of the statute, except that in the condition the name of the obligor is inserted, where that of the obligee should have been. It was given and received as a replevin bond, and accomplished its purpose by enabling the plaintiff in replevin to obtain possession of the property replevied. We cannot presume the mistake was made with a fraudulent intent to defeat the obligation. That the substitution of one name for the other is a mere clerical error, is manifest, unless we suppose the obligors intended an absurd and idle stipulation, for they must have known that the plaintiff in replevin could not recover cost against himself, and must have been aware of the folly of a condition that he should pay such sum as might thus be recovered. The error of the scrivener is manifest. No one who reads the bond can avoid perceiving it. It is patent on the face of the instrument. If we ignore it or refuse to perceive it, we alone do it. The condition itself shows the mistake. There is no need of parol evidence for its correction. It corrects itself by the context. “ A court of law, in the construction of an instrument, will correct a palpable mistake and give it the meaning intended by the parties.” Marion v. Faxon, 20 Conn. 487. “It explains itself readily,” says Stores, J., in that case, which was on a receipt for goods attached and where a mistake like the one under consideration occurred. Such too, is the rule of the civil law which provides that if the error of the notary in writing is manifest, the contract ought to be supported.” Dig. 50, 17, 92. The bond must be regarded as a valid bond. The instructions given in reference to the writ and bond were erroneous, and a new trial must be had.

Exceptions sustained. New trial granted.

Shepley, C. J., and Tenney and Wells, J. J., concurred.