Crawford v. Evans

Opinion by

Mr. Chief Justice Stebbett,

This action, commenced before a justice of the peace and removed into the common pleas by appeal from his judgment, is based on defendant’s penal bond of July 1, 1892, to the “ heirs of H. D. Crawford.” The condition of the bond is, “ that whereas the said heirs have issued a landlord’s warrant against their tenant, James M. Bell, to collect rent due from him, .... and whereas said heirs propose to give said James M. Bell indulgence until the first day of September, 1892, now, if the said James M. Bell and his wife shall retain and keep all their property in their house, and shall remove none of said property from their present house before the said first day of September, 1892, so that all the property belonging to said James M. Bell and wife, or either of them, shall remain on said premises on said first day of September, 1892, without any fraud or further delay, then this obligation to be void and of none effect, otherwise to be and remain in full force and virtue.”

It was practically conceded that all the ‘goods referred to were kept on the demised premises, and remained there until after the expiration of the time named in the bond; but it was contended that defendant’s undertaking was that the property should be so kept on said premises “ as to be beneficially answerable for plaintiff’s claim ” on said first day of September, 1892, and that she was bound to so control the action of the tenants that they would not then, or at any previous time, prevent access to, or seizure of said property for rent.

The main subject of complaint is that the learned president of the common pleas construed the bond substantially in accordance with the plaintiff’s contention, and so instructed the jury. Among- other things,in his answer to defendant’s second and fourth points for charge, he said: “ If the house was barred and plaintiffs were prevented by James M. Bell and his wife, in conjunction with defendant, from taking a levy, then the true spirit and meaning of that bond was violated and plaintiff would be entitled to recover.” Again, he said: “ It is probably true that Miss Evans could not have compelled her sister, Mrs. Bell, to open the door. I mean that she would have no legal right to do so. And we are to bear in mind that Miss Evans was not on this bond undertaking to control the conduct of herself alone, but she was undertaking that James M. Bell and his wife would retain their property so as to be beneficially answerable for plaintiffs’ claim, and if they prevented plaintiffs from entering the house .... defendant would be liable under the bond.”

It was only by thus construing the bond in suit that a verdict in favor of the plaintiffs was made possible. We are of opinion that such construction of the bond was not warranted by anything therein expressed; nor, does it contain anything from which such an undertaking, on the part of the defendant, can be fairly implied.

It is unnecessary to refer more specifically to the specifications of error. They all involve substantially the same question of construction.

Judgment reversed.