59 Kan. 395 | Kan. | 1898
At the January term of the District Court of Ellsworth County, for the year 1890, the plaintiff in error, Jerome B. Handy, recovered a
It appeared in testimony at the trial that at the time of the execution of the bond the sureties were stockholders in the Burrton Land and Town Company. The sureties all testified that, they remembered the circumstance of the recovery of the judgments against the Company; that they remembered the signing of the bond sued upon ; that it was the only one signed
“ No variance between the allegations in a pleading and the proof is to be deemed material unless it have actually misled the adverse party to his prejudice, in maintaining his action or defense upon the merits.”
And section 140 declares :
“The court in every stage of action must disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party; and no judgment shall- be reversed or affected by reason of such error or defect.”
The spirit of these two provisions will not permit the non-suit of the plaintiff below because of the mistaken recital of dates in the bond sued upon.
The writer, speaking for himself, is of the opinion that the question is resolvable upon general considerations applicable to the nature and effect of recitals in written instruments. Recitals are of two kinds — particular and general; or, as applied to cases like the one in hand, contractual and non-contractual. The former constitute parts of the obligatory portion of the instrument. The facts recited are the moving causes for the making of the contract. They constitute the consideration for its execution. Non-contractual recitals, however, are made for the purposes of explanation — made to set the acts of the parties in the light of those incidents which are convenient to an understanding of the instrument, but which do not constitute the justification for making it. 2 Wharton’s Evidence, §§ 1039, 1040, 1083 ; 1 Greenleaf on Evidence, § 285.' In this case, the recitals in the bond sued upon, of the recovery of the judgments, were contractual, or dispositive. The obligors could not be heard to dispute them. The date of the recovery of the judgments was a mere incident. That they were recovered upon a particular date and upon no other, was not the moving cause of the execution of the bond. A recital of the date might have been omitted, and the terms of the instrument would have been quite as
Again it will be observed that the bond is unilateral in its execution. It is the obligation of the signers, and of no one else. The obligee is entitled to sue upon it, but he had no part in drafting it; he proposed none of its recitals ; the mistakes it contains are not his mistakes, but are those of his adversary; he approved none of its terms ; however unwilling he may have been to the delay in the enforcement of his judgments, which followed the execution of the bond by the signors and its approval by the clerk, he was compelled to submit. The writer feels clear that in such case the misrecital of dates in the bond cannot in law operate to the prejudice of the obligee, the plaintiff in error. “ In order that a recital may bind all parties to an instrument it must be intended to be a statement of facts which all admit to be true. Where it is intended to be the statement of one party, that party only is bound.” 20 Am. & Eng. Encyc. Law, 463.
The judgment of the court below is reversed for further proceedings in accordance with this opinion.