White v. Indemnity Insurance

DRAPER, P. J.

Plaintiffs had judgments upon an undertaking on attachment. Defendant surety appeals.

In the earlier action in which the attachment issued, the complaint, filed by two plaintiffs, named as defendants “Wilson Dills, Black and White Company, a co-partnership, First Doe, Second Doe and Third Doe.” It alleged that the then plaintiffs did not know the true names of the three Does, but asked leave to insert them when discovered. The undertaking on attachment filed by appellant was captioned “Bauer-Lesser, a partnership, et al., Plaintiff, v. Wilson Dills, et al., Defendant.” In it, the surety obligated itself to “Wilson Dills, et al., Defendant. ’ ’ White, one of the plaintiffs here, was served with summons as defendant First Doe, and Mrs. Katsaros as Second Doe. Their respective residences were then levied upon under writ of attachment which had issued upon filing of the undertaking. Their motions to quash the attachments and for summary judgment were denied. The case in which the attachments had issued was tried and defendants White and Kat

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saros had judgment. They brought these actions upon the undertaking. The eases were consolidated for trial. Bach had judgment for attorney’s fees incurred in defense of the basic action, and White also was awarded interest upon cash which he had deposited to release the attachment when he arranged a sale of his home.

Defendant surety argues that respondents may not recover upon the undertaking because they are not named in it as obligees. But we deal here with a contract of surety-ship, and its interpretation is governed by the rules applicable to contracts generally (Civ. Code, § 2837;

Standard Oil Co.

v. Houser, 101 Cal.App.2d 480 [225 P.2d 539]). Thus, we must so interpret the undertaking as to give effect to the mutual intention of the parties (Civ. Code, § 1636), and to every part of the contract, if reasonably practicable (Civ. Code, § 1641). We must favor a construction which renders the contract operative and capable of being carried into effect (Civ. Code, § 1643).

The undertaking does not specifically name the Does. But it does run to Dills, “et al.” This is, of course, the common abbreviation for “et alii,” meaning “and others.” To limit the obligation to the named defendant is to deprive the phrase “et al.” of all meaning and effect. Nor can we attach significance to the use of the descriptive word ‘‘ defendant” in the singular, both in caption and body. The caption also describes the two plaintiffs, the principals who contracted with appellant surety, as “Bauer-Lesser, a partnership, et al., Plaintiff.” Appellant’s use of the singular to describe the two principals who bought the bond from it and who obviously were known to it, negates construction of the singular “defendant ” as a word of limitation.