Dye v. Dye

• Citation: 12 Colo.App. 206,55 P. 205
• Parties: DYE v. DYE et al.
• Decision Date: 14 November 1898
• Court: Court of Appeals of Colorado

55 P. 205

12 Colo.App. 206

DYE v. DYE et al.

Court of Appeals of Colorado

November 14, 1898

Error to district court, Arapahoe county.

Action by Bessie H. Dye against Oliver W. Dye, as principal, and Job A. Cooper and Charles L. McIntosh, as sureties, on an appeal bond. From a judgment for defendants, plaintiff brings error. Reversed.

Thomas Macon and Chas. D. Hayt, for plaintiff in error.

Rogers Cuthbert & Ellis, for defendants in error.

BISSELL J.

The extent of the liability of the sureties on an appeal bond is the only question presented by this writ of error. In 1895 Bessie H. Dye, in a suit brought against her husband, Oliver W., in the district court of Arapahoe county, obtained a judgment for alimony pendente lite; and thereunder the order of the court was that Oliver W. pay into court forthwith $25 for costs and expenses of suit, $25 for the use of plaintiff and the sum of $100 for the use of plaintiff's counsel on or before March 15, 1895, and on the 1st day of March, 1895, and on the first of each succeeding month thereafter, until the further order of the court, the sum of $50 for the use of the plaintiff. From this judgment, an appeal was taken, which was granted on condition that Dye file an appeal bond in the sum of $1,000, according to the statute. Thereupon Dye filed with the clerk of the court his bond in the sum of $1,000, which contained this condition: "The condition of the above obligation is such that whereas the said Bessie H. Dye did, on the 6th day of March, one thousand eight hundred and ninety-four, at a term of the district court then being holden, and for the county of Arapahoe and state of Colorado, obtain a judgment against the above-bounden Oliver W. Dye, for the sum of one hundred and fifty dollars, and costs of suit, from which judgment the said Oliver W. Dye has prayed for and obtained an appeal to the court of appeals of said state of Colorado: Now, if the said Oliver W. Dye shall duly prosecute said appeal, and shall moreover pay the amount of said judgment, costs, interest, and damages, rendered and to be rendered, against him, the said Oliver W. Dye, in case the said appeal shall be affirmed in the said the court of appeals, then the above obligation to be null and void; otherwise, to remain in full force and effect." The appeal was treated as operative by both parties. No execution was issued on the judgment. The case was brought to this court, where, on hearing, it was finally affirmed. 48 P. 313. Demand was then made on the sureties, and, the parties coming to no settlement, suit was brought directly on the bond, to recover the various sums which were payable,--the amount which was payable on the 15th of March, and the subsequent monthly installments, to the limit of the bond; the plaintiff seeking to recover the full penalty. This she was entitled to, because there were enough overdue payments to consume it, providing this was the measure of the sureties' liability. The court held against Mrs. Dye, and adjudged the sureties only liable to the extent of $150, because the recital in the condition of the obligation described the judgment as one for $150 and the costs of suit. Mrs. Dye sued out a writ of error, and this is the case for decision.

The fundamental and underlying principle for which the defendants in error contend is that sureties are always objects of peculiar regard, who have a right to insist that their liability shall not extend beyond the strict terms of their obligation, and that it cannot be extended by inference or implication. The rule is conceded. There is no doubt about the principle and the universality of its application and enforcement. It remains, however, always to be determined whether the one construction comports with their obligation, or, on the other hand, restricts it or extends it beyond their engagement. When there is any question respecting the terms of the contract, we understand that the same rules of construction are applied as when the contract is to be construed and enforced between the principal and the promisee. Wherever it can be ascertained that there is a clear intention on the part of the sureties to enter into a more enlarged obligation than is apparent from the exact phraseology of the instrument itself, it is as true with sureties as with the principal, they may still be bound, notwithstanding this principle.

The liability of sureties on bonds of various descriptions--appeal bonds, and others--has been the subject of much consideration. The courts do not seem to be in entire harmony, and there is frequently a great similarity in the facts of cases in respect to which different courts have reached different conclusions. We are so thoroughly in accord with those which enforce the liability of the sureties, not only where the terms of the instrument compel it, but also where the obligation is a doubtful one, but there is clearly exhibited by the terms of the writing an intention on the part of the sureties to be bound, that we do not hesitate to follow those which enforce the liability, rather than those which permit them to avoid what was in reality their contract. We are supported in this conclusion by the adjudications of the supreme court, as well as by judgments which we have rendered under similar circumstances. It has often been a question whether sureties will be liable in case of a misdescription in a bond, or a misrecital which apparently varies and alters the evident purpose of the parties. It would be conceded that this bond would have obligated the sureties to pay the judgment up to the limit of the penalty of their bond, if it had contained no other condition and no other recital than that Bessie H. Dye had obtained a judgment against Oliver W. from which he had prayed and obtained an appeal, and the sureties had agreed that he should pay the amount of the judgment, costs interest, and damages rendered and to be rendered against the appellant. If the bond had been so written that there was enough in it to describe the judgment, the sureties would doubtless be liable to the bond limit. It thus logically leaves this question: whether the misrecital of the amount of the judgment, or the misdescription in the statement of $150, absolutely vitiates what would otherwise be a contract and agreement of the parties to pay the whole judgment, and leaves the sureties only liable to that amount. It ought not to be true, and the contrary is supported by many well-considered cases, which commend themselves to our judgment. McElroy v. Mumford, 128 N.Y. 303, 28 N.E. 502; Landa v. Heermann, 85 Tex. 1, 19 S.W. 885; Warren v. Marberry, 85 Tex. 193, 19 S.W. 994; Ryan v....