7 U.S. 229
3 Cranch 229
2 L.Ed. 420
February Term, 1805
ERROR TO THE CIRCUIT COURT OF THE
DISTRICT OF COLUMBIA AT ALEXANDRIA
The plaintiff declared upon a bond dated 3 October, 1799, and upon oyer, the bond appeared to be dated 3 January, 1799. The variance, on demurrer, is fatal.
There are many cases on the construction of bonds where the letter of the condition has been departed from to carry into effect the intention of the parties.
The declaration was in debt on a bond dated 3 October, 1799, in the penalty of $5,000. On oyer, the bond appeared to be dated the 3 January, 1799, and the condition was as follows:
“Whereas, the said Stephen Cooke did lend to Josiah Watson, of the Town of Alexandria, $2,500 of the said William Graham’s money, and the said Josiah Watson having failed, but before he failed paid $500, and whereas the said Stephen Cooke hath instituted a suit against the said Josiah Watson for the recovery of the said money, now the condition of the above obligation is such that if the said Stephen Cooke shall well and truly pay the whole sum so lent if it can be recovered from the said Josiah Watson or his endorser, or in case it cannot be wholly recovered, will lose the one-half of that sum which cannot be recovered, then the above obligation shall be void, otherwise to remain in full force and virtue.”
After oyer granted, the defendant had leave to imparle, but not pleading at the rule day, judgment was rendered at the rules for want of a plea.
At the next term, the defendant set aside the office judgment by demurring generally to the declaration, which demurrer was joined by the plaintiff.
Afterwards, on motion, the defendant had leave to withdraw his demurrer, and pleaded general performance of the condition of the bond. To which the plaintiff replied, and assigned a breach in this, that the defendant has not paid the sum of money mentioned in the condition,
or any part thereof. The defendant rejoined that the sum of money in the condition mentioned, lent by him to Watson, could not be recovered from the latter or his endorser.
To this rejoinder the plaintiff demurred specially
1st. Because the defendant doth not state, in his rejoinder, that he used all legal means for the recovery of the said $2,500 of Watson, and his endorser.
2d. Because the defendant does not state that he has not recovered any part of the said $2,500 of the said Watson, or his endorser, or how much of the $2,500 remains unrecovered of the said Watson or his endorser.
3d. Because the defendant is bound to pay one-half of the sum that is not recovered of the said Watson, or his endorser, and if the defendant has not received any part of the $2,500 of the said Watson or his endorser, then he is bound by the condition of the said bond to pay one-half of the sum of $2,500 to the plaintiff.
4th. Because the defendant does not give any answer as to the sum of $500, stated in the condition of the said bond to have been received by him of the said Watson before the execution of the said bond.
5th. Because the rejoinder is a departure from the plea of conditions performed.
Upon this demurrer, the judgment of the court being in favor of the plaintiff, the defendant, upon motion, had leave to file an additional plea, whereupon he pleaded, that the whole sum lent to Watson could not be recovered of him or his endorser, nor could any part thereof be recovered, except the sum of $500, mentioned in the condition of the bond, by means whereof the defendant became liable and bound to pay to the plaintiff only one-half of the said sum which could not be so recovered, and that the defendant paid to the plaintiff’s intestate the said one-half of the said sum of money which he was liable and bound to pay as aforesaid. To which plea there was a general replication and issue, and verdict for the plaintiff for $2,032.75.
On the trial of this issue, a bill of exceptions was taken by the defendant below to the opinion of the court that the plaintiff was entitled by the said bond to recover of the defendant the sum of $500 at all events; and that he was also thereby entitled to recover of the defendant the residue of the said $2,$500, if the jury should be of opinion that the defendant could have recovered the same of the said Watson or his endorser. And if they should be of opinion that no part of the said residue could have been so recovered, then the plaintiff is thereby entitled to recover of the defendant one-half of the said residue, in addition to the said sum of $500.
Other exceptions were taken at the trial, but were abandoned by the plaintiff in error in this Court.
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the Court to the following effect:
The plaintiff declares upon a bond dated the 3 October, and upon oyer, the bond appears to bear date 3 January preceding.
By the oyer, the bond is made a part of the declaration. There were several pleadings, and among the rest, a bad declaration, a bad rejoinder, and a special demurrer by the plaintiff to this bad rejoinder. When the whole pleadings are thus spread upon the record by a demurrer, it is the duty of the court to examine the whole, and go to the first error. When the special demurrer is by the plaintiff, his own pleadings are to be scrutinized, and the court will notice what would have been had upon a general demurrer. The variance between the date of the bond declared upon and that produced on oyer is fatal.
Upon the second point, the Court is of opinion that there is no error in the construction given by the court below to the condition of the bond. There are many cases on the construction of bonds, where the letter of the condition has been departed from, to carry into effect the intention of the parties.
But for the first error, the judgment must be reversed and judgment entered for the plaintiff in error on the demurrer.
Judgment reversed with costs.