White v. Smith ( 1859 )

The opinion of the court was delivered by

Thompson, J.

The first assignment of error in this case is to the negative answer of the court to the plaintiff’s third point, and their affirmative answer to the defendants’ fourth. These answers regard the construction to be given to the contract on which suit was brought. It was a joint and several instrument.

We have no doubt whatever but that the contract in question was an undertaking or guaranty, by Smith and Robinson, for the faithful performance by the former of his agreement with the plaintiff, with the superaddition of a stipulation for a release of liability under certain restrictions, in case of Smith’s death during the continuance of the lease. The want of proper punctuation is, if objectionable at all, no more allowable in vitiating the contract, i or in destroying its effect, than bad grammar, the rule against which is a maxim of the law. To allow the contractor to punctuate in mitiori sensu of his own words, would be something of a novelty. I think no case can be found, upon which the sense of a contract has depended upon the absence of punctuation marks —words are the most usual evidence of intent, and formed into sentences, are to be taken to express the meaning of the party using them. Punctuation may aid in ascertaining the true reading of a production, but the production may be read and interpreted without such aids. What do the words here mean? And they are to be taken most strongly against the party using them. Read fairly and as they stand, without any effort other than to ascertain all that the contract stipulated for, it is not easy to see anything to justify the construction claimed by the defendants. Indeed, the defendant in error is forced to rest his construction on the- unlikely idea that it was meant as a life insurance by the guarantor, Robinson. But it would seem to have wanted a premium to make it an insurance. It is idle to dwell on such a view of the case. It is simply an agreement entered into by Smith and Robinson for the faithful performance by Smith of his contract, and in case Smith should die within the three years, then Robinson to pay up to that time, and deliver the property, as stipulated, to White. That it has been sued upon as joint can make no essential difference — it might well be treated as joint, Smith still living. It would have been encumbered with no inconvenience, if he had been dead. That we have given the proper construction to the instrument cannot well be doubted. And this was forcibly illustrated by the counsel for plaintiff in error, when he took the position that, if the court below were right, it would lead to the impracticable result, that if Robinson was only to be bound in the event of Smith’s death, then Smith, living, might chop, clear, and fence the requisite number of acres of land or not, as he pleased, and the former would not be answerable for any default of his; but Smith dying, then and in that case, it was to be held that Smith should chop, clear, and fence the land, and perform the other covenants in the agreement! This would be a pretty hard condition, if literal performance was meant to be guaranteed. But what was intended and expected is fully expressed, that Robinson was bound for performance of Smith, and if he died before the lease expired, then Robinson was to fulfil what remained to be performed at that time, and the contract was to be at an end.

We do not think the court were right in holding that the suit of White v. Smith, for the rent in question, was a bar to this suit. That was on the covenants in the lease. This one was upon a collateral covenant. That one was upon an instrument which was alone signed by Smith, and of course several. This upon a different instrument, signed by both, and joint and several. It mattered not, that the action against Smith did involve, to a great extent, the same considerations as this action; it was so only because this was a guarantee, while the other was on the contract guarantied, and in this respect it was essentially an action resting on a different consideration from that on the lease. It was a suit to enforce the obligation of suretyship. This widens the relation between the two actions. Standing on this footing, the action against Smith by White was not outside of the duty of the guarantee, or prejudicial to Robinson the guarantor. It was simply an effort to enforce performance against the principal, in the first place, instead of looking to the surety. Smith being bound with Robinson, in a suit on a different contract, although as surety for the same contract, does not contravene the rule that no one shall be twice vexed for the same cause. I see no impropriety or difficulty in a party being more than once sued for the enforcement of the same duty or obligation, if he have given more than one contract, in different forms, for its performance. One judgment, with satisfaction, would bar any subsequent recovery, certainly ; but satisfaction is a different thing from the recovery of a judgment never paid, or likely to be paid, when, as in this case, the party, it appears, is insolvent. For the reasons thus given, this judgment must be reversed.

Judgment reversed, and a venire de novo awarded.