The opinion of the court was delivered by
This is an action of special assumpsit, as per declaration. Thé plaintiff declares that the defendants, on the 1st day of February, 1853, in consideration that the plaintiff did then and there undertake and promise to become bail for one Moses Thurston, then imprisoned, then and there undertook and faithfully promised the plaintiff to indemnify him from all damages and costs that might accrue to him, by reason of the plaintiff becoming such
The written contract, offered in evidence, is a part of the bill of exceptions, and may be referred to for its particulars. It was excluded by the county court, as having no legal tendency to support the action. It is quite possible that there might be some-ground of objection to the admission of the written contract, in evidence, by reason of variance between that and the declaration, in setting out the consideration for the defendants’ promise.
In the written contract of the defendants, it is expressed to be, “ for value received,” and the case was doubtless open to the plaintiff to show, by parol evidence, in what that value consisted. It is not stated, in the written contract, that the plaintiff had become bail for Moses Thurston, at the request of the defendants, and unless such request maybe inferred from the force of the words, “for value received,” it might seem to be a past consideration on the face of the papers.
But it does not appear that any question of variance, as growing out of the consideration, as stated in the declaration, was made at the trial in the county court, or passed upon by that court; and none has been made in the argument in this court. The court below held that the written contract had no tendency to support the action, and this upon the ground, we are to presume, that the plaintiff had entirely mistaken its legal effect, and this is the important question. The court should give effect to a contract, according to the intent of the parties, but that intent must be found from the whole instrument taken together. The question then is, what is this contract ? It is claimed by the defendants, that their undertakings are several, and that the extent of each one’s liability is limited by the mark for dollars and the numerical figures opposite his name. But the contract is joint only, in its terms. We agree to indemnify, &e. The subject matter of the promise is also entire, and not susceptible of division or limitation. It is to indemnify against all damages and costs, &c. It is true that words, which would create a joint contract, have been sometimes controlled and rendered several by the distinct and several subject matter to which they relate, and upon which they are to operate. But in the case before us, the promise is to give a full indemnity against all damages and costs,
In that event the plaintiff could only claim a partial indemnity, to wit., to the amount of $78.50. Where the promise is joint in its terms and its object, it cannot be made several by any doubtful implication or limitation. The sums may have been affixed to the respective names of the defendants, to regulate the principles or rate of contribution among themselves, upon giving the plaintiff his full indemnity.
If the contract was not so drawn that it can have the effect which the parties intended it should have, it is quite another question, whether it can be reformed in chancery.
The judgment of the county court must be reversed, and the case remanded.