Moorman v. Collier

Cole, J.

l. assignment: acStion.f I. Upon the trial the plaintiffs offered the bond in evidence. The defendant objected, because it was not given to plaintiffs, but was for the sheriff only. This objection was overruled, and this is assigned as error. There was no error in the ruling of the court. All instruments, under our statute, are assignable so that the assignee shall have a right of action in *140 his own name. Rev., § 1796. Hence, the bond having been assigned to plaintiffs, they might offer it in evidence.

8. Bond : action. But further than this, our statute also provides that, when a bond given to an officer is intended for the security a particular individual, suit may be brought thereon in the name of any person intended to be secured, etc. Rev., § 2787. The testimony in this case shows that the bond was given to secure plaintiffs; indeed, that is apparent from the bond itself. It was for this reason, also, properly admitted.

3. Contract: bona”-m!s-u: take of law. II. The testimony in the case makes it quite apparent that the defendants, Collier and Good, and also the sheriff, inteD-ded 7 the bond, simply to obligate ®'ood as surety for Collier, to deliver the property, or its value, to the sheriff, to satisfy any judgment that the plaintiffs might recover against Collier, and they all supposed that to be its legal effect. But there is no dispute that the sheriff prepared the bond as it is, and the defendant, Good, carefully read it over before he signed it, and knew its language to be precisely what it is; and he signed it intentionally. The defendant, by giving the bond, not only discharged the horse, saddle and bridle from the attachment, but also the two garnishees. He probably did not intend the latter; but his intention could not restore the plaintiffs to their rights as against the garnishees. It is a case of mistake of law, in which some person must suffer; and the law wisely, though sometimes with great apparent hardship, leaves it for him to suffer who committed the mistake.

We cannot better state the rule in such cases than by quoting from 2 Pars, on Cont. (6th ed.) 494, 496 : “ The rule of law is, not that the court will always construe a contract to mean that which the parties to it meant, but rather that the court will give to the contract the construction which will bring it as near to the actual meaning of the parties as the words they saw fit to employ, *141 wben properly construed, and the rules of law, will permit. In other words, courts cannot adopt a construction of any legal instrument which shall do violence to the rules of language, or to the rules of law. Words must not be forced away from their proper signification to one entirely different, although it might be obvious that the words used, either through ignorance or inadvertence, expressed a very different meaning from that intended. * * * * Eor if the words employed were those intended to be used, but their actual meaning was totally different from that which the parties supposed and intended them to bear, still this actual meaning would generally, if not always, be held to be their legal meaning.”

The bond to perform the judgment, provided for in section 8191, and which was given by defendants in this case, is very different in its requirements and conditions from the forthcoming bond provided for in section 3219. Under the latter, the property is to be valued by the sheriff and two disinterested persons summoned by him, unless otherwise agreed; and the penalty of the bond is regulated by the value of the property, etc. The difference between the two bonds is almost too patent to admit of confounding the one with the other. But however this may be, under the rules of construction above quoted, there is no escape from making the order that the judgment shall be

Affirmed.