Knisely v. Shenberger

7 Watts 193 | Pa. | 1838

The opinion of the Court was delivered by

Huston, J.

The counsel for the plaintiff in error attempted to show that this agreement, to indemnify Shenberger against judgments which bound the land he bought from Patterson, was the agreement of Patterson alone, because it began “I do hereby, &c.” and Patterson signed it before Knisely. To this, two answers occurred: first, that where a writing begins as this, it may be taken as the several engagement of each, or joint, engagement of both, Selwyri’s N. P. 326 ; besides the whole of the agreement contradicts this construction. It would be absurd to suppose that John Patterson went security for himself. But the case stated puts an end to this matter: it says, this agreement was executed by Anthony Knisely, in consideration that Shenberger would accept the deed and pay the consideration, notwithstanding two judgments bound the land.

If ever there was a time when courts listened to trivial and verbal inaccuracies in contracts, when the real meaning and intention of the parties was plain, that time has gone by, and the only object of courts is, that where the meaning and intention of the parlies are perfectly plain, no grammatical inaccuracy or want of the most appropriate words shall render the instrument unavailing.

The fact that Patterson signed this paper may not be immaterial to Knisely hereafter: it will show that he is not a volunteer surety for Patterson, that he became surety in the presence and with the knowledge of Patterson, and, perhaps, a jury would infer, at his request.

' Another objection was attempted, that a case might have been stated more favourably to defendant. It may be possible, that a case is stated so defectively, that no judgmentean, with propriety, be given on it, and in such cases it may or must be sent back. But where a case has been stated, argued and decided in the common pleas, and judgment there given, it would be strange if this court would undo and reverse all this, to put the parties to the trouble and expense of another trial.

It is said in Fuller v. Trevor, 8 Serg. & Rawle 329, to be settled, that the supreme court will not take cognizance of a writ of error on a case stated and submitted to the court of common plea's, unless it be agreed, that it shall be subject to a writ of error. Now our paper books show no such agreement, and on this ground the plaintiff would fail; but this is mentioned only to remind counsel of the rule of this court on this point. It was not noticed in the argument, and we have decided on the case as if a writ of error lay.

Judgment affirmed.