Heynemann v. Eder

17 Cal. 433 | Cal. | 1861

Cope, J. delivered the opinion of the Court

Field, C. J. concurring.

This is an action upon a bond, in the following form:

“ Know all men by tiñese presents, that we, D. M. Eder & Co., and Jos. Loryea and M. Jacobs, as sureties, of the county of Trinity and State of California, are held and firmly bound unto the Sheriff of Trinity county aforesaid, John B. May; in the sum of one thousand dollars, to be paid to the said John B. May, or to his successors in office, to which payment, well and truly to be made, we bind ourselves, our heirs and assigns, jointly and severally, firmly by these presents, sealed with our seals and dated this twenty-fourth day of December, 1857.

“ Whereas, the said John B. May, Sheriff as aforesaid, by virtue of an attachment issued out of and under the seal of the Twelfth Judicial District Court, in the county of San Francisco, against D. M. Eder and P. M. Eder, firm of D. M. Eder & Co., for the sum of $563.75, interest and costs,'is about to seize or levy the same upon the property of the said D. M. Eder & Co. and P. M. Eder, with intent to hold the same to satisfy any judgment that may hereafter be obtained in said Court, in an action commenced Dec. 10th, 1857, by Leonard Heynemann and Morris Pick, composing the firm of Heynemann, Pick & Co., against D. M. Eder and P. M. Eder, composing the firm of D. M. Eder & Co., for the sum of $563.75, interest and costs, as aforesaid.

“ Now, therefore, the consideration of this obligation is such, that if the said defendants D. M. Eder et al. shall in all time hereafter keep the said John B. May, Sheriff, harmless and indemnified of, from and against all damages, costs, charges, trouble and expense of whatsoever nature which he may be put to by reason of the non-seizure of said defendants’ property, and that they will pay whatever judgment may be rendered against said defendants in said cause, beside costs, etc., then the bond to be void; otherwise, in full force and effect in law.”

We are inclined to the opinion that the provision of this bond for the indemnity of the Sheriff is void from public policy, but it is unnecessary to decide this point. The provision for the payment of any judgment which might afterwards be recovered against the defendants in the attachment is not subject to this objection, and to that extent the bond is a valid and binding obligation. But no judgment was recovered against one of the defendants, and it is contended that the condition of the bond^has not, therefore, been violated. This position, we think, is untenable. The bond, in this particular, conforms substantially to the requirements of the statute, and the fair presumption is that it was executed with reference to the statutory provisions upon the subject. Though not strictly an undertaking such as is contemplated by the statute, we think it should be construed in the same manner. Of course the obligors cannot be held beyond the terms of their agreement, but this agreement must be read by the light of the statute, and interpreted according to the meaning and intention of the parties. The security required by the statute is a security for the satisfaction of any judgment that may be recovered, and we do not see that any principle of construction is violated in holding that such is the character of the security in this case. This is undoubtedly the sense of the instrument, and the argument in favor of a different construction rests upon a mere verbal criticism. The case of Hood v. Mathis (21 Mo. 308) is directly in point.

Judgment affirmed.