Frankel v. Stern

By the Court, Belcher, J.: The action is based upon an undertaking, the material portions of which are as follows : “Sow therefore, we, the undersigned, residents of the City and County of San Francisco, in consideration of the premises and of the issuing of the said attachment, do jointly and severally undertake, in the sum of two thousand two hundred and twenty-five dollars, gold coin, and promise to the effect that if the said defendant recover judgment in said action, the plaintiff' will pay all costs that may be awarded to the said defendant, and all damages which he may sustain by reason of the said attachment, not exceeding the sum of two two hundred and twenty-five dollars, gold coin.” The case was tried by the Court without a jury, and judgment rendered for the plaintiff for oiie thousand and eighty-one dollars and ten cents.

The appellants insist that upon the face of the undertaking they are liable only for two hundred and twenty-five dollars, and that no judgment for more than that sum could be rendered against them, unless the undertaking were first reformed by inserting in the blank left between the words “two” and “two,” the word “thousand,” claimed by the fc plaintiff to have been accidentally omitted.

The statute (Prac. Act, Sec. 122,) provides that'the Clerk, before issuing an attachment, shall require an undertaking [171]on the part of the plaintiff, in a sum not less than two hundred dollars and not exceeding the amount claimed by the plaintiff, to the effect that if the defendant recover judgment the plaintiff will pay all costs that may be awarded to the defendant, and all damages which he may sustain by reason of the attachment, “ not exceeding the sum specified in the undertaking.”

The sum “ specified in the undertaking ” in this case is two thousand two hundred and twenty-five dollars, and it is apparent, we think, that the Clerk intended to require, and the sureties to make, an undertaking in that sum. It is an original independent contract on the part of the sureties, and must be construed in connection with the statute which authorizes it.

Looking at the undertaking and the statute, no one can doubt as to what was the intention of the parties. This being so, the omitted word may be supplied and the contract read as if it had been expressed.

To this effect are the authorities. Thus, in The People v. Judges of Oneida, 1 Wend. 28, the Court say: “In the construction of a written instrument the whole is to be taken together, and effect given to the intent of the parties, if that can be discovered from the general scope and tenor of the instrument.” In Teall v. Van Wyck, 10 Barb. 379, the action was upon an appeal bond, which stated in the condition that the appeal was to the Common Pleas, when in fact it was to the County Court. The Court held the bond good, and upon this point said: