English v. Shelby, 172 S.W. 817

English v. Shelby

172 S.W. 817

Ark.

1915

Check Treatment

Smith, J.,

(/after stating the facts). (1-2) There is but little 'conflict in the evidence, and it is agreed that the decision of 'this case turns upon the interpretation given the bond sued upon. Various rules of construction are called /to our attention to enable us to discharge this duty. Appellee, of course, 'concedes that the' first sentence of the guarantee would impоse an absolute liability, if it stood alone; but it is said that the effect of the subsequent recitals of the guaranty is to limit this liability, and to' make that liability contingent upon these subsequent recitals. If is a rule of construction that, if 'there is a repugnancy between generаl clauses and more detailed, specific clauses, the fatter will govern. But this, like all rules of construction, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍is intended to aid in-the ascertainment of the intention of the parties to the instrument construed. And this meaning is to be derived from a consideration of the whole instrument. However, we find here no such conflict between the opening sentence of this guaranty and the remaining recitals thereof, as requires us to give the words thеre employed any other than their ordinary meaning. The guaranty is first expressed in general terms and afterward with more detail and particularity, tout no actual conflict or repugnancy of recitals appears, and special provisions will nоt toe permitted to annul general provisions, where both can stand together, and 'the intention oif the parties .appears to toe that .they should iso stand.

(3) In the сonstrnction of any instrument, where doubt arises as to its meaning, we may consider the contemporaneous agreements of the parties with respect to the same subject-matter, and when that is done in the instant case, we find that the bond sued on was executed in compliance with the contract under which the improvement was cоnstructed. The material part of that contract is. set cut in the statement of facts, and there appears to he no doutot as to. ‘the character1 of the bond then contemplated. The language there employed appears to' be susceptible of only ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍one construction. And if, in fact, such a bond was executed, as that coutract required, then we may be assured .of the proper construction to give it. There was no ether purpose in executing this bond. When the work wias сompleted there was no controversy about its having been done as required by thе plans, and there is no such controversy now, and if this bond is to toe given a, constructiоn which makes its exeention of value to the district, we must hold that it intended to guaranteе the work against .the necessity for repairs for a period of five years. . -

The trouble with the street was that holes and cracks appeared in it and there was. а wearing away of its surface, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍and its foundation was defective. These defects appear to toe covered toy the terms of the guaranty.

Appelleеs insist that no liability should be imposed upon the contractor because the foundation used was approved by the engineer. The foundation was, indeed, thus apprоved; tout it was within the terms of the contract and was used without protest on ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the part'of any one. Thereafter the bond sned on was executed, in evident compliance with the construction contract, and no question was made that a foundation hаd been employed which ■would impose a burden the 'Contractor had not agreed to assume.

(4) We think the proper construction of the bond sued on was that it was a guаrantee that the street should remain ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍in perfect condition for a period оf five years, and that no repairs would be 'required within that time.

(5) The sureties in this ease became such for a money consideration, and their liability is dependent upon ¡the liаbility of their principal.

It follows, therefore, that 'the court properly refused tо render judgment in favor of appellees for the repairs made by the contrаctor, and 'the judgment of the court, dismissing appellants ’ canse of action for the cost of the repairs which ithe ¡contractor refused to make, is reversed, and as the cost thereof is undisputed, judgment will be rendered here for that amount.