26 Mo. 475 | Mo. | 1858
delivered the opinion of the court.
The construction, which the court of common pleas gave to the bond sued in this case, is, in our opinion, the only one which it' could receive consistently with the intent of the parties. The purpose of the instrument sufficiently appears upon its face. A suit had been instituted by the plaintiffs against Mudgett & James by attachment, and the property assigned to defendants was sought to be made liable to the attachment. The defendants, in order to retain the property and proceed with the sales they had commenced, agreed to pay the plaintiffs this debt if the suit against them as garnishees should prevail. The question between them was whether the property was liable to the attachment, or whether the assignment would hold it free from the attachment; and to provide for the settlement of this question either way was, beyond all doubt, the matter which the parties set about to accomplish in this bond. They did, beyond all doubt, make provision for this contingency, whichever way it might turn out. But in a supplementary or explanatory clause of the agreement another contingency is mentioned, which is, literally construed, a mere general judgment against Mudgett & James, and thus construed the contingencies previously provided for are rendered superfluous.
There could be no judgment against Hickman & Eislier without first a judgment against Mudgett & James. If the word “ or” in the explanatory clause be replaced by “ and” the whole agreement is easily explained and reconciled. This must be done in order to carry out the intent of the parties, or the judgment against Mudgett & James referred to in the explanatory clause must be understood to be such a judgment as would reach the property attached, and not a general judgment binding and reaching his general property — a.judgment in which Hickman & Fisher could
It does not appear from the recitals or obligatory clauses of this bond, that the validity of the claim of the plaintiff against Mudgett & J ames was a matter of dispute or doubt. But the matter in issue between the plaintiffs and defendants was, whether the property assigned to the latter was liable to this judgment or not. It may be that the parties supposed, that, as there was a plea in abatement put in, no separate judgment could be obtained against Mudgett & James. It may be that they supposed the law to be, that, where an assignment was fraudulent on the part of the assignors, Mudgett & James, it would fall altogether, although the creditors provided for may have had no participation in the fraud. It is not material what opinion may have been entertained about this matter. The question is, what kind of a judgment did they have in view when they spoke of a judgment against Mudgett & James alone? Did they mean a general judgment after a dismissal of the attachment, or did they mean a judgment that would bind the property attached ? They speak of a judgment against the defendants, Hickman & Fisher, and they speak of a judgment against the defendants, Hickman & Fisher and Mudgett & James ; and, in the concluding explanatory paragraph, they speak of a judgment against Mudgett & James alone. But, throughout, they speak of the judgments as obtained in the attachment suit, having clearly in view a judgment against the property in dispute, and not a general judgment in which the defendant could have no concern unless it clearly so appeared by the agreement.
It is said that no ambiguity is to be found in the language used in this concluding paragraph of the bond, and that we must give full effect to it, cost what it will. We do not consider ourselves at liberty to give this literal construction to it at the expense of sacrificing all the previous words of the
What is the necessary consequence of giving to this instrument the construction claimed by the plaintiffs ? The substantial amount of the entire agreement is, according to this interpretation, that Hickman & Fisher bound themselves to pay a claim of the plaintiffs against Mudgett & James whenever it was finally established by a judgment in court. Now if this was the object of the parties — and it could be nothing more nor less, if we give the construction to the bond now insisted on — what was the use of any reference in the bond to the attachment, or to the probable or possible result of that attachment so far as it might affect the defendants and their claims under the assignment ? It was impossible for the plaintiffs to make any thing out of their attachment, or procure any judgment against Hickman & Fisher, unless the debt of Mudgett & James was first established. If that had no existence, all inquiry into the fraud of Mudg-ett & James was unnecessary and superfluous; and if the intent was to make Hickman & Fisher responsible in the event of establishing the demand against Mudgett & James and upon that alone, it was perfectly useless, in the paper writing which was to provide for this, to say a word about the attachment or make any reference to any judgment against Hickman & Fisher, for no judgment could ever be obtained against Hickman & Fisher unless one was first had against Mudgett & James ; and if the latter contingency was to fix the liability to be provided for, why name any thing about the former ? The intent was, as the argument of the plaintiffs assumes, that Hickman & Fisher were to be responsible when the debt against Mudgett & James was established and however the attachment suit might terminate as to Hickman & Fisher and the property in the assignment. We then have the parties guilty of the absurdity of providing for a contingency which really and in fact had nothing whatever to do with fixing their liability. The contingency men
One would think that this purpose could hare been accomplished in a much plainer and more simple and intelligible manner. We must suppose that this purpose must have sprung up near the conclusion of the writing sued on. It certainly did not exist when it was commenced, for it is totally inconsistent with every portion of the instrument except the concluding paragraph. If it was the design of this concluding paragraph to carry out a purpose of this sort, entirely inconsistent with all that preceded it and rendering the whole previous writing a dead letter,.it is strange that men of business (habits, competent to express their intentions clearly, did not abandon the agreement framed under a different idea as useless and not conforming to their subsequent understanding. It would have been more easy, more simple and more natural to have done this than to have attempted to interpolate a new contract in the old one, introducing a new liability swallowing up the old ones, and rendering all that had gone before entirely superfluous.
But the prominent, leading idea of the supplementary paragraph is to provide for the finality of the judgment, to render it clear that whatever judgments had been previously described should be only final ones, the termination of the litigation. Restricting the judgment against Mudgett & James to one of this character, and which necessarily reached the property in dispute, the entire agreement is consistent, easily understood, rational and perfectly fitted to effect the purposes which the recitals show were in the minds of the parties. To adopt the other interpretation and give a full, independent and unrestricted meaning to the words of the explanatory, concluding clause, would be to abolish all the recitals and obligations previously written down, and would
