1 Gall. 388 | U.S. Circuit Court for the District of Massachusetts | 1813
The principal question, which has been argued at the bar, is, whether the defendants were entitled to the benefit of the alternatives stated, so as to discharge the bond by a compliance with either. The district attorney has contended in the negative, and has argued, that the intention of the bond having been to secure the payment of all the duties due on the goods, it cannot be discharged by the payment of a less sum. As the acts for the collection of duties are public acts, the court are bound to take notice of their provisions. The present bond appears to be taken in the form prescribed by the act of the 2d of March, 1799, c. 128, § 2 [1 Story’s Laws, 573; 1 Stat. 627], which expressly requires all bonds for the payment of duties to be with a disjunctive condition, viz. to pay a specific sum, or the amount of duties to be ascertained to be due and arising on the goods imported. It follows, therefore, that no construction of the condition can be admitted, which in the face of the words destroys the legal effect of the alternatives. By the general rule of law, if the condition of an obligation be in the disjunctive, it may be- discharged by the performance of either of the enumerated acts at the election of the obligor, for the condition is for his benefit. Basket v. Basket, 2 Mod. 201; Stanley v. Fearne, 3 Lev. 137; Layton v. Pearce, 1 Doug. 15; Laughter’s Case, 5 Coke, 22. An exception to the rule is, where the parties have saved the election to the other party. It cannot be successfully argued, that such an election is in this case reserved to the United States. It is distinctly admitted, that the United States cannot, under any circumstances, be entitled to more than the amount of duties; and this would seem to result from the provisions-of the 65th section of the act of 1799. If, therefore, the specific sum had been greater than the amount of the duties, the United States could not have been entitled to elect such sum; and if it be less, it is impossible to contend, that the rule of construction is to change with the increase or diminution of the sum, and not by the terms of the condition. In the nature of the case, therefore, as arising under the laws for the collection of duties, there is nothing to raise an implication in favor of an election in the United States. On the other hand, the words of the condition are expressly in favor of an election *by the obligors. “If -the obligors, or either of them, their heirs, &c., shall and do, on or before, &c., pay the sum of $3500, or the 'amount of the duties,” &c., are the words of the condition. Plainly, therefore, it is at their option to do either, and if either be done, it is a discharge of the bond. But it is suggested, that the bond is to be considered as a bond with a single condition for the payment of duties. To this we answer, that such a construction is repugnant to the alternative terms of the condition and is therefore utterly inadmissible.
It is averred by the United States in their pleadings, that the bond was executed to the United States, to secure the just and true amount of duties accruing upon the imported goods, and that the sum of $3500 was erroneously inserted in said condition, instead of the trae amount of duties, viz., $6168.35. What is the true intent and meaning of a written instrument is not matter of extrinsic averment, but in cases, where there is no latent ambiguity, depends on the instrument itself. And an averment, that the sum stated in the condition is erroneously inserted for another sum, is inadmissible upon the general ground, that it contradicts the language of the condition. Whatever might have been the intentions of the parties, we can only decide upon their acts, and not upon their intentions abstracted from their acts. We construe this instrument precisely as we should, if it were between individuals, and it would be highly dangerous to adopt a different rule. On the whole, we entertain no doubt, that the bond was discharged by the performance of either part of the disjunctive of the condition, and the judgment must be affirmed. The United States are not, how