157 F. 182 | 8th Cir. | 1907
This was an action by A. N. Bort, who was formerly head banker of the Modern Woodmen of America, a fraternal society organized under the laws of Illinois, to recover in his personal right upon a bond given by McCutchen & Co. as principal, and others as sureties, conditioned for-the performance, by the principal, of certain obligations as a depository of funds of the society. The society was also made a defendant. Defendants, other than the society, demurred to the petition, and the demurrer was sustained by the trial court upon the ground that Bort was not personally secured by the bond, and therefore had no cause of action for the default of the depository. He stood upon his petition, and judgment went against him; hence this writ of error.
A by-law of the society, referred to in the bond in suit, provided that bonds given by depositories should be made payable “to the head banker and to the Modern Woodmen of America, or either of them,” and that they should be executed in duplicate, one to be held by the head banker and one by the board of directors of the society. Also, that the approval of such bonds by the board of directors should be with the concurrence of the head banker. The bond given by defendants, McCutchen and sureties, provides that they are firmly held “unto A. N. Bort, as head banker of the Modern Woodmen of America, a corporation duly organized and existing under and by virtue of
In the construction of a writing of doubtful import a knowledge of the atmosphere in which it grew is frequently helpful, and sometimes essential, to a true conception of the intent of the parties. There is no set formula for the expression of ideas; the words and phrases selected by contracting parties differ almost as widely as their personal ■ characteristics. If the significance of the written •words is plain to a common intent, that is the end of it; but if not, a view of the positions of the parties and their relations to each other and to the subject-matter of their contract often discloses, with convincing clearness, what they were seeking to attain. The ascertainment of the true intention is the great' rule for the construction of contracts, and the favor with which the law regards a surety does not make his undertakings an exception. The case before us is plainly one for the summoning of those well known' aids to the construction of an ambiguous text, for there is that in the bond which indicates more than a mere purpose to secure the society alone, in respect of the safe-keeping and forthcoming of the funds.
A consideration of the relations between the society and the head banker, and the latter’s continued responsibility for the funds with the depository in connection with the terms of the bond in suit, makes it altogether clear that it was intended that the bond should also stand as personal security for the head banker. The provision of the by-laws that the bond should be payable to both or either of them — a provision that would be unusually tautological under any other construction — is at once explained. But it is- said there is no reference in the bond to the by-law imposing a continued responsibility for the funds upon the head banker, and nothing else in it indicating that the makers of the bond intended to bind themselves to him in his personal capacity. But we think that a view of the terms of the bond, and of those things to which attention is directed by its recitals, fairly leads to the conclusion that a dual security was intended — a security for the society and a security for Bort, personally. Any other construction would result in there being but one beneficiary in the bond — the society; for Bort, in his official capacity, was, in legal.contemplation, the society itself. Such a
It is contended that the words “jointly and severally” refer to the obligation of the makers of the bond, rather than to the rights of the obligees, but this is contrary to the obvious sense in which the words were used. Were the true construction in this particular at all doubtful, it would be made plain by the subsequent addition of the words “or either him or it” to the conjunction of the names of Bort and the society. It is also contended that the word “as,” placed between Bort’s name and the title of his office, means that his official character was intended. That is ordinarily the signification, but it is not conclusive. The word “as” is frequently dropped as surplusage, where it appears that its use is inapt or that the title of the office or position following it is intended b}r way of more definite designation of the person named. It is said that all of Bort’s acts in these matters were official. That is true in a sense, yet, when the consequences to him are regarded, they also assume a personal aspect. His was not the usual liability for official misconduct, for, however honestly and faithfully he acted, there was ever present a personal responsibility for the funds of the society;
There are some other contentions of defendants, mainly relating to the effect upon the bond and the rights and. duties of the parties, of the death of McCutchen, and particularly one that the bond imposed upon McCutchen . duties requiring the exercise of personal judgment, skill, and discretion, which his death rendered impossible of’ performance, thereby resulting in the discharge of the sureties. We have considered but are unable to sustain them.
The judgment is reversed, and the cause remanded with directions to overrule the demurrer, and permit the demurring defendants > to answer.