Raymond v. Bigelow

The plaintiff claims to recover in this case the amount of three several notes paid by him. They were joint and several notes, executed by the plaintiff and defendant, in payment of purchases made and money borrowed for the company, where both partners were present and participated in the contracts ; and the question arises, whether pay*469ment in these cases entitles the plaintiff to recover under the terms of his bond.

On the date of the bond neither of these debts existed in the company name, or against the company. The plaintiff and the principal defendant had incurred a joint and several liability on these notes, for the company debts; but this is different from their liability as partners, which is a joint obligation, on which they could not be individually sued.

The debts did not stand in the company name, and were not properly company debts at the time of the execution of the bond.

There is a farther objection to these debts being included under the bond, and that is, that they were not contracted by Bigelow any more than by Raymond, the other partner. Both were present participating in the trade, and gave their joint and several notes.

How, then, can it be said that these notes “ were debts, dues or demands against the company, contracted by Enos Bigelow in the name of the company ?”

It would have been very easy to have made the condition of the bond that Bigelow should pay all the company debts, or all notes given for such debts. Had such been the design, well understood by the parties, we can hardly conceive of their drafting a condition in which such contract would not have been perfectly apparent; and it appears to us exceedingly improbable that they should with such design have drafted such a condition as now appears in the bond.

A condition that Bigelow should pay all demands against the company “ contracted by Bigelow in the name of the company,” is very different from paying all demands against the company merely.

According to the plaintiff’s construction the words, “contracted by Bigelow in the name of the company,” are perfectly unmeaning ; and that the contract would he precisely as the parties meant it, by striking such words out.

But would these words be inserted for no purpose ? When *470sufficient had already been inserted to express precisely the intention of the parties, and when, of themselves, they would or might show a condition, which, according to the ordinary and necessary interpretation of the terms used, would form a contract it might in many instances be very proper and desirable to make.

It would be a new rule of construction which, under such circumstances, would induce us to strike out these words. It may have been the desire of Raymond, on terminating the partnership, to protect himself against any outstanding company debts which might have been contracted by Bigelow in the company name, without the knowledge of Raymond. If so, the condition would be very proper to effect this purpose.

As these terms, therefore, may form a substantial part of a contract, in their ordinary and natural interpretation, they must be so construed ; and we think with this construction the claims now sued for do not come within the condition of the bond. They were neither contracted for by Bigelow, and were not outstanding in the company’s name on the date of the bond.

If this construction does not meet the design of the parties, it is their fault in drafting their contract in its present shape. The plaintiff has no remedy upon his bond, but can sue his former partner only for contribution. It is very clear, that there is nothing in the facts of this case, as applicable to the bond, that should hold the surety liable ; and the same rule of construction, in relation to the contract, must apply both against the principal and surety.

Judgment for the defendants.