33 Pa. 186 | Pa. | 1859
The opinion of the court was delivered by
The first assignment of error in this case is to the negative answer of the court to the plaintiff’s third point, and their affirmative answer to the defendants’ fourth. These answers regard the construction to be given to the contract on which suit was brought. It was a joint and several instrument.
We have no doubt whatever but that the contract in question was an undertaking or guaranty, by Smith and Robinson, for the faithful performance by the former of his agreement with the plaintiff, with the superaddition of a stipulation for a release of liability under certain restrictions, in case of Smith’s death during the continuance of the lease. The want of proper punctuation is, if objectionable at all, no more allowable in vitiating the contract, i or in destroying its effect, than bad grammar, the rule against which is a maxim of the law. To allow the contractor to punctuate in mitiori sensu of his own words, would be something of a novelty. I think no case can be found, upon which the sense of a contract has depended upon the absence of punctuation marks —words are the most usual evidence of intent, and formed into sentences, are to be taken to express the meaning of the party using them. Punctuation may aid in ascertaining the true reading of a production, but the production may be read and interpreted
We do not think the court were right in holding that the suit of White v. Smith, for the rent in question, was a bar to this suit. That was on the covenants in the lease. This one was upon a collateral covenant. That one was upon an instrument which was alone signed by Smith, and of course several. This upon a different instrument, signed by both, and joint and several. It mattered not, that the action against Smith did involve, to a great extent, the same considerations as this action; it was so only because this was a guarantee, while the other was on the contract guarantied, and in this respect it was essentially an action resting on a different consideration from that on the lease. It was a suit to enforce the obligation of suretyship. This widens the relation between the two actions. Standing on this footing, the action against Smith by White was not outside of the duty of the guarantee, or prejudicial to Robinson the guarantor. It was simply
Judgment reversed, and a venire de novo awarded.