Gay v. State

1. Recognizance ; Ambiguity may be explained, by other parts of the record. Where a recognizance in its obligatory part recites that it is made by William P. Gay, Peter Le Page, and William T. Gay, and the condition is that “ if the above bounden William Gay shall appear at the next term of the district court to be holden in the county of Shawnee, there to answer the charge of grand larceny,” held, that under proper averments in the petition it was competent to show by evidence that the “ William Gay ” who was bound to appear, was William P. Gay. 2.--Not a Contract; record evidence of existing debt. A recognizance is not a contract between individuals to which the statute of frauds will apply. It is an acknowledgment of record of a preexisting debt owing by the cognizors to the State, not as sureties but as principals. 3.--Appearance-day omitted, not void. A recognizance requiring a defendant to appear “ at the next term of the district court” of the proper county, but which does not designate any particular day of such term, or of the month, on which he is to so appear, is not void, la such case the defendant is bound to appear on some day during the said “next term,” and when he does so appear he is bound to remain until permitted to leave by order of the court.

Drror from Shawnee District Court. The county attorney of Shawnee county brought suit upon a forfeited recognizance to recover the penalty therein mentioned. The petition set forth the recognizance in full, in words and figures following: “ We, William P. Gay, Peter Le Page, and William T. Gay, are held and firmly bound unto the State of Kansas in the sum of five hundred dollars, lawful money of the United States. The condition of this obligation is such that if the above bounden William Gay shall be and appear at the next term of the district court, to be holden in the county of Shawnee, there to answer the charge of grand larceny, and not depart the court without leave, then this obligation to be void, otherwise to remain in full force and effect. William P. Gay, “ Topeka, July 30, 1869. Peter Le Page, William T. Gay. “ Taken and acknowledged before me, and sureties approved, this 30th day of July, 1869. “ William Y. Barr, Justice of the Peace.” The petition alleged that William P. Gay was, on the 14th of July, 1869, charged on the oath of one P. L. with the crime of grand larceny; that he was duly arrested, taken before Wm. Y. Barr, a justice of the peace, to answer to said charge, and that he, the said Wm. P. Gay, did then and there waive a prelimin'ary examination thereon, whereupon said justice ordered that said Wm. P. Gay give bail in the sum of $500 for his appearance, etc.; and that thereupon the said defendant, with Peter Le Page and William T. Gay, entered into a recognizance, etc., (reciting the terms thereof, as above;) that the “ said William Gay named in said condition is the same person hereinbefore mentioned as William P. Gay,” etc. The 'petition further shows that the “ next term ” of the district court held subsequently to said July 30, 1869, was the December Term, 1869; that said recognizance was duly filed in said court; that the defendant ’William P. Gay did not appear on the first day of said term, nor on any day thereof, but made default, etc.; that on the 6th of December, said defendant and his said sureties were duly called, etc., and said recognizance was forfeited, and the forfeiture thereof duly entered of record, etc. Judgment was demanded against all the defendants for said sum of $500 and costs. The defendants demurred, alleging “ that the said petition does not state facts sufficient to constitute a cause of action against these defendants, or either of them.” The ease was heard at the July Term, 1870. The district court overruled the demurrer, and the defendants not desiring to answer over, j-^-ment was given in favor of the State. The defendí. •, ~Nng the case here, assigning as error the overruling of their demurrer. 1. 'T” i petition, on which judgment was rendered in the dL^iCt court, did not state sufficient facts to constitute a cause of action, because the recognizance on which the petition was based is void for uncertainty. Two “ William Gays ” are named in the obligatory clause, and the condition of the recognizance is the appearance of “ the above bounden William Gay.” This is a clear case of patent ambiguity — and hence no extrinsic evidence can be admitted to explain it. Starkie on JEv., 591, 593; 4 111., 254; 1 Mason’s C. C; R, 9; Bald. O. C. R, 489; 1 Cond. S. O. R, 197; 1 Johns. Oh. R, 233 ; 35 Eng. O. L. R, 163; Walk. Am. L., 609; 3 Dallas, 415. This instrument must be strictly construed. The sureties must be made liable upon the exact letter of the recognizance or not at all. This rule is firmly established. 5 Ohio, 214; 15 Pet, 208; 17 Wend., 180, 422: 4 Has., 570. An executor’s bond was given in case of James L. Finley, deceased, instead of Joseph L. Finley; held that one can be held for default of another only when bound in writing: 20 Ohio, 97. The bond speaks for itself: 17 Ohio, 565. The liability of a surety is not to be extended' beyond its terms: 9 Wheat., 680, 702. Action on a letter of credit; held, parol testimony not allowed to prove what was intended: 4 Cranch, 224. The court must construe the contract: 2 Pars, on Cont., 4, and note. And the meaning must be ascertained from the terms or words of the recognizance, and without reference to external circumstances, or any inference whatever. What is meant by the words, “ the above bounden William. Gay ? ” There are two — William P. Gay, and William T. Gay — entirely different persons, both named, and both “ above bounden.” Where a middle letter is inserted in a name it becomes* important, and■ must be proved as laid: 19 Ohio, 423. And perhaps it is important when not inserted: 1 Pick., 388; 3 id., 262; State v. Hughes, 1 Swan’s, Tenn., 266;. 4 Kas., 91. Under the rule laid down in 19 Ohio, 423, if an indictment charged an offense against William P. Gay, and the proof showed that his name was only “ William Gay,”1 this would have been a fatal variance. So here; the. most that can be gathered is, that this recognizance was taken for the appearance of “ William Gay.” But this would not support a judgment on a petition which alleges a recognizance taken for the appearance of William P. Gay. But this recognizance is not for the appearance of William Gay merely, but for the “ above bounden ” William Gay — either William P. or .William T., and it cannot be ascertained which. The instrument therefore i& void. The defect is not cured by § 154 of the criminal code;. for the recognizance, under that section, must show who was its principal. Nor is it helped by an averment that William P. Gay was meant; the meaning of the contract is a matter of law, and cannot be pleaded. Said § 154 provides that no action upon a recognizance shall be defeated, etc., “if it can be ascertained from the recognizance, that the sureties undertook that the defendant .should appear before a court or magistrate for examination or trial for such offense.” This limits the inquiry to the recognizance itself. 2. The petition does not set out any breach of the condition of the recognizance declared on. It avers that the parties were called and failed to appear on the 6th of December, which the court will take judicial notice was the first day of the term. But the letter of their recognizance did not require them to appear then, unless that was also the last day of the term. But it was not; for the petition says that they did not appear on the first nor on any other day of the term. Their failure to appear, therefore, on that day was no breach of the condition. 3 II..S. Dig., p. 324, § 148. This is not disputing a record, but simply alleging that what is declared on as a matter of record does not show a breach. This is only entered on the minutes at any rate: § 152, Crim. Code. And they are no part of the record: 9 Johns., 287; 4 Barb., 36; 4 Wend., 409. 1. The petition avers that the “ William Gay,” in the condition of the recognizánce, and the William P. Gay, in. the obligatory clause, are the same person, and that said William P. Gay is the principal. The absence or the initial of the middle name in the “ William Gay ” in the condition is an apparent defect — made apparent by the phrase “ the above bounden ” — and is cured by the statute: Crim. Code, § 154. This case differs from the case in 4 Kas., 570. There was no ambiguity, uncertainty or apparent defect in that case; the contract was clear, and explained itBelf. The alleged mistake could only be corrected by altering or contradicting the plain terms of the instrument. Here the defect is apparent on the face of the instrument itself, and extrinsic evidence is not invoked to contradict or alter . terms which are plain and certain, but merely to explain that which the instrument itself shows to be a a mistake. And in this respect it is distinguished from the case in 20 Ohio, 93. ' 2. But plaintiff claims that this ambiguity is patent, and therefore extrinsic evidence is inadmissible to explain it, and hence the recognizance “ is void for uncertainty.” Parol evidence of conversations, etc., to prove direct intention is admissible to remove a latent ambiguity, and if evidence of contemporaneous facts and circumstances will remove a patent ambiguity it is admissible. 2 Pars, on Cont., 5th ed., pp. 459, 560, 561, and notes. It may be shown which of two or more persons or things was intended by a description equally applicable to all. Unless the contract is incurably uncertain, it will be enforced. There is nothing better settled in the construction of all written instruments than 'the rule that that is sufficiently certain which can be made certain. If you can construe an instrument by parol evidence, where that instrument is ambiguous, in such a manner as not to contradict it, you are at liberty to do so. 2 Pars, on Cont., 563, note. A patent ambiguity in a deed may be explained by parol. 6 Mass., 440. 3. The rule that a contract of a surety must be strictly construed in no way conflicts with rules for determining what that contract is. Surely, in the case at bar, a court construing the instrument in the light of contempora. neous facts and circumstances cannot mistake the intention of the parties. Where the condition of the recognizance provided for the appearance of John Empie, and the instrument is signed Sylvester Empie, it is competent to aver and prove that Sylvester was the principal who executed the recognizance and was erroneously described in the body thereof as John Empie. 41 111., 456. Where it-was “James W. M’Callaster,” in the obligatory part, and “ James Wesley M’Callaster,” in the condition, held the defect might be cured by averment and proof. Kelly v. JETachett, 10 Ind., 299. Then why may not the defendent in error aver and prove that William P. Gay was the principal who executed the recognizance, and was erroneously described in the condition thereof as William Gay? That he was correctly described in the obligatory part affords no answer, surely. 4. The second objection urged by plaintiff in error, that “ the petition does not set out any breach of the condition of the recognizance declared on,” is equally untenable. The condition was for the appearance of Gay “ at the next term of the district court.” As a matter of law he was bound to be present at the next term— the whole term, the first day and every day thereafter, unless sooner discharged. Wilson v. The State, 6 Blaekf., 212; Grim: Code, Gen. Stat, 844, §154.