36 Pa. 24 | Pa. | 1859
The opinion of the court was delivered by
The covenant on which this suit was brought, was one of indemnity against liability in a suit brought in the District Court of Allegheny, by Richard Beeson against the plaintiff below, on an agreement between them, involving interests of the defendant. It was a covenant, that if the plaintiff would defend that suit, and if judgment should be recovered against him, the defendant would “ be responsible to, and refund to the plaintiff the whole amount of debt and costs that may be recovered in said case.” There was sufficient consideration for this contract, and no question exists here as to that. The defence of the suit and recovery against plaintiff were admitted by the plea of covenants performed, with leave, &c. But a recovery was resisted, on the ground that the recital of the matter to be indemnified against, was different from that upon which the recovery was sought to be had. In other words, that the generality of the covenant was to be restrained by the recital in a sort of preamble to it.'
It would be an extremely strict construction so to hold. The suit of Beeson v. Patterson might well be described as brought to recover costs, when we look at the instrument on which it was brought, and which is expressly referred to in the recital contained in' the contract of the defendant. By that agreement, Patterson stipulated that, in ease the executor should be adjudged to pay the costs incurred by contesting Mrs. McNabb’s claim, and should have to pay any more money than he had in his hands for that purpose, the same should be repaid by the estate of Jesse Beeson, the plaintiff in error. It was to indemnify Patterson against this contract, that the covenant declared on was entered into. That contract was to indemnify in case of a fruitless resistance of Mrs. McNabb’s claim. Neither suit nor suits were mentioned in that
But, suppose all this to be uncertain, by reason of the ambiguity patent in the instrument, 'the common law rule of interpretation must then be resorted to, viz., that the instrument being the deed of the party to be bound, must be taken most strongly against him. This would be decisive against the defendant below. The rule in Pothier cited that, “ however general the terms may be in which an agreement is conceived, it only comprehends those things in respect to which it appears that the contracting parties proposed to contract, and not others they never thought of,” is a rule in explaining- intent, but it has no force where the matter intended to be contracted about is not uncertain, but the extent of the obligation only may be. In such a case, if it be contended that the words used do not express the intent of the party, and there be no explanation of them, their binding force must, of necessity, be ascertained through the rules of law applicable to such a contingency. Here, indemnity against a recovery in a prior agreement, made for the benefit of the defendant, was the object of the guarantee; the covenant is sufficiently broad to cover it, and we see nothing in the recital to limit it.
Judgment affirmed.