
    [Philadelphia,
    January 8, 1827.]
    ROTH and another against MILLER and another.
    IN ERROR.
    Pleas payment with leave and conditions performed, with leave &c., replication, issue, &c. is1 a good joinder of issue after verdict.
    In a suit' on a bond of indemnity, if the narr sets out the condition to be, to keep the plaintiff indemnified against certain bonds, describing them, and breach in not so doing, pleas of payment, and conditions performed, admit the bonds as stated. It is error to leave to the jury the construction of writings.
    Sureties are as much bound by the true intent and meaning, of the instrument to which they are parties as principals.
    Error to the Court of Common Pleas of Northampton county.
    The plaintiffs in error, Peter Both and John Both, were also plaintiffs below, and Jacob Miller and Jacob Bauer defendants. There was a third defendant, George Keim, as to whom the sheriff, (being permitted to amend his return,) returned nihil habet.
    
    The action was debt upon a bond, in which the obligors were called executors of the estate of. Conrad Both; the penalty of which was three thousand nine hundred and sixty-two dollars, sixty-nine cents, and the condition as follows. “Whereas David Musselman, by seven certain obligations bearing even date herewith, together with the said Peter Both and John Both, standeth bound unto the heirs of the said Conrad Both, in the above sum of three thousand nine hundred and sixty-two dollars sixty-nine cents, current money of Pennsylvania, aforesaid, to be paid by seven instalments', which said money is to be paid by the said David Musselman, his heirs, executors, and administrators, now the condition of the above obligation is such, that if the said David Mussel-man shall pay or cause to be paid the said above-mentioned debt or sum of three thousand nine'hundred and sixty-two dollars and sixty-nine cents, on the days and times mentioned in the said several obligations, to the said heirs of the said Conrad Both, deceased, and if the said Jacob Bauer, George Keim, and Jacob Miller, their heirs, executors, and administrators, shall from time to time, and at all times hereafter, keep harmless and indemnify the said Peter Both and John Both, their heirs, and assigns, their goods and chattels, lands and tenements, of and from all suits, payments, costs, and charges of and in behalf of the said above recited obligations to the heirs aforesaid, without any fraud or further delay, then the above obligation to be void, of else to be and remain in full force and virtue.”
    The declaration stated the penalty, recited the obligation, and assigned breaches, viz.
    1. That David Musselman, had neglected and refused to pay the said debt, of three thousand nine hundred and sixty-two dollars and sixty-nine cents, to the heirs of Conrad Both; by means whereof John Roth and Peter Roth, were forced to pay divers sums of money.
    2. That the said obligors, have not kept harmless and indemnified the obligees; but, on the contrary, they aver that one of the heirs had recovered a judgment against the said David Musselman, John Roth, and Peter Roth before a magistrate, which was founded and rendered Upon one of the said seven obligations; and that two others of the heirs, viz. Conrad Roth, (his assignee, George Siess,) and Daniel Roth had each instituted suits in the Common Pleas, upon two of the said bonds, each of them for one thousand four hundred and forty-four dollars forty-four cents, and both of which were due and unpaid, when said suits were brought. By reason of which said breaches, said writing obligatory became forfeited and action accrued &c. &c.
    To this narr Bauer and Miller pleaded payment with leave, &c. to which there was a replication of non solvit and issue: afterwards they pleaded “conditions performed, with leave to give the special matter in evidence, and leave to add, alter, or amend;” there then followed the words, “Replication and issues.”
    Upon these pleadings the parties went to trial, and there were verdict and judgment for the defendant.
    Upon the trial, several questions were put to the court, by the counsel for the plaintiffs, with a réquest to charge the jury thereon. Inter alia they were requested to direct the jury. “ That if the jury believe that the bonds given in evidence, although not precisely described in the condition of the bond, on which the above suit is brought, were the bonds against which it was intended that the plaintiffs should be’indemnified, it is sufficient to support that part of the plaintiffs’ cause.”
    The court charged as follows: “The court are of opinion that under the will of Conrad Roth, deceased, the executors of the last will and testament of the deceased had a right, with the approbation of the widow, to sell his real estate. The general rule of law is, that executors and trustees shall not be permitted to purchase at their own sale,—this is the'general rule. But there are exceptions to it; and it is now the law of Pennsylvania, that if at a sale by executors, a third person purchase the lands for them, if the sale has been open and fair, and the lands struck off at a fair price to such third person, the sale is valid.
    The parties appear to have transacted this business in relation to this estate very singularly. It would rather appear from the testimony, that Jacob Bauer was employed by David Musselman and John Roth to purchase the land for them. Previous to the sale, which took place on the 13th of April, 1816, David Musselman and John Roth entered into an agreement with Jacob Bauer to purchase the land for them, at the sale, restricting him, however, to the priee of forty-eight dollars per acre. At the sale, however, he bid forty-nine dollars seventy-five cents, arid the premises were struck off to him at that price. On the 26th of August, 1816, a deed was executed by John Roth, Peter Roth, and David Musselman, the executors of Conrad Roth, deceased, to Jacob Bauer for the tract of land which contained one hundred and fifty-four acres and twenty-eight perches, for the consideration of seven thousand six hundred and seventy dollars and twenty cents. On the same day he conveyed to David Musselman, one hundred and twenty-two acres and sixty perches, for the consideration of six thousand and eighty-eight dollars and forty-one cents, and two pieces containing together thirty-one acres, and one hundred and twenty-eight perches, to John Roth,.iov one thousand five hundred and eighty-two dollars and five cents; which sums together make up the consideration expressed in the deed from the executors to' Jacob Bauer. They took it it at the same price at which Bauer purchased. For the part which John Roth took- he gave a bond with Daniel Schaback, as his security. Why was not this course adopted, as to the part which David Musselman took? For his part, he, John Roth and Peter Roth, entered into bonds to pay the purchase money, and then this wretchedly drawn bond of indemnity was taken. They have gone most strangely to work about this. For some of the purchase money, Musselman gave his bonds with John and Peter Roth, as security; for some with Peter Roth as security, and for some with John Roth as security. ' And then Peter Roth and John Roth took from Jacob Bauer, Jacob Miller, and George Keim the bond of indemnity, on which this suit was brought.
    The defendants allege that this bond.of indemnity was improperly obtained. David Musselman has been examined as a witness.
    [Here the judge recited David Musselman’s testimony and David Sautee’s and Matthias Gross’s.] You, gentlemen, must consider whether the .parties were aware of what they were doing, when they executed this bond of indemnity.
    The condition of th'e bond must be construed strictly in favour of sureties, (here the court read the condition.) We are bound by the condition, and it must, be construed according to the words contained in the condition. The obligations produced do not correspond with the words of the condition.
    1. Because the bonds are not to the heirs of Conrad Roth, deceased. But one of them is executed by David Mussehnan, Peter Roth, and John Roth to Daniel Roth; another by the same to Christian Roth; another by the same to Plenry Bauer; another by the same to Jacob Roth; another by David Musselman and John Roth to Peter Roth; and another by David Musselman, Peter Roth, and John Roth to John Demuth. The condition of the bond would imply that each bond was payable to the heirs of Conrad Roth, deceased. - '
    2. The sums mentioned in these bonds which have been pro- ' duced, do not correspond with the sum mentioned in the condition of this bond of indemnity. Four of the bonds are for seven hundred and twenty-two dollars and twenty cents each, one for eight hundred and five dollars and forty-five cents, one for two hundred and ninety dollars and three cents, and one for two hundred and forty-two dollars and eighty-two cents. The law will not permit us to substitute any other than those mentioned in the condition.
    If this bond of indemnity had been drawn in a proper manner, and had recited each bond as it existed, it would then have been your duty to take into consideration the damages which the plaintiffs have sustained, and it would not in that case have been necessary for the plaintiffs to prove that they had given notice to the defendants of the damnification. Your verdict in that case would have been for the balance of the bonds mentioned in the condition, and the court would have exercised a controlling power over the verdiet so as to have-done justice to all the parties concerned.
    But we think this bond of indemnity is drawn in so miserable a manner, that the sureties are-not responsible for the bonds given in evidence. They vary essentially from the bonds enumerated in the condition. .
    If the jury should think that the bonds given in evidence, are not the bonds enumerated in the condition of the bond of indemnity, then their verdict should be in favour of the defendants. But if they should think that the bonds given in evidence, are the bonds described in that condition, then their verdict should be for the plaintiffs, on the principles before stated.
    This charge was excepted to; and a bill of exceptions duly signed. The errors now assigned were,—
    1. The pleadings do not present any issue, capable of being tried.
    2. The court erred in their charge.
    1. In directing the jury, to consider whether the parties were aware of what they were doing when they executed the bond of indemnity.
    2. In their principles relative to the construction of the condition of the bond of indemnity, and in adopting a strict construction in favour of the sureties.
    3. In their actual construction of the condition.
    4. In the general tenor of their charge, subsequent to the part first above said to be erroneous.
    Scott, for the plaintiff in error.
    1. There was no issue. The pleadings did not deny the breaches assigned in the declaration. 2 Johns. Rep. 413.
    2. The charge of the court was erroneous. The court instructed the jury that they must consider whether the defendants knew what they were about, when they signed the bond of indemnity. There was no issue which brought this matter into question. Considering all the docket entries, the first plea of payment with leaye, &c. was abandoned.
    
      - 3. The charge of the court on the construction of the bond was wrong. The court said it must be construed strictly, because the obligors were securities; and they said that the breaches were not supported, because the condition of the bond given in evidence differed from that set forth in the narr. The pleas confessed the bonds as set forth in the narr. Cro. Eliz. 757. 5 Bac. Ab. 480. Wittes, 9, 25.
    
      Tilghman, contra^
    The record is very defective, in not containing the evidence on which the court charged. The cause was fairly tried on its merits.
    1. There are several issues on the record;—one on the plea of payment: another on the plea of condition performed.
    2. The defendant may plead inconsistent pleas, one of which may seem to admit the cause of action, but another may deny it. There was evidence that the obligors did not understand English, and were deceived as to the' contents of the bond; the court, therefore,properly left to the jury, “whether the defendants knew what they were, about.”
    3. The, court left it to the jury to say whether the bonds produced in evidence were the same as the bonds mentioned in the condition.
    
      Scott, in reply.
    As to the merits, it is certain that the plaintiff became security for a third person, and the defendants were bound to indemnify them; that the .plaintiffs have been damnified and that the defendants have escaped on techinal grounds and objections. The court did indeed leave to the jury, whether the bonds, described in the breaches were the same as those produced in évidence, after having misled them by a misconstruction in matter of law, which compelled them to find a verdict for the defendants. For if the construction of the court was right, the bonds certainly were not the same. The plaintiffs’ breaches were confined- to two of the bonds given to the heirs of Conrad Roth. The judge certainly did tell the jury that each of the seven bonds ought to have been given to all the heirs of Conrad Roth; or at least he so expressed himself as to leave it doubtful whether this was not his meaning: and thus the jury would be bewildered, if not absolutely misled. The judge does not say that any one of the bonds was given to a person not one of the heirs of Conrad Roth.
    
   The opinion of the court was delivered by

Duncan, J.

This case does not come up in the most lucid order, It takes some pains to relieve it from the obscurity, in which on a first view it appears to be involved; but, when it is understood, it presents a very clear case.

It was an action on an obligation of indemnity, reciting that David Mussleman, by seven certain obligations, bearing even date herewith, together with Peter Roth and John Roth, did stand bound to the heirs of Conrad Roth, deceased, in the sum of three thousand nine hundred and sixty-two dollars, to be paid in seven instalments by the said David Musselman, conditioned that if the said David Musselman should pay the said sum of three thousand nine hundred and twenty-six dollars and sixty-nine cents, on the days and times mentioned in the said obligations, to the said heirs of the said Conrad Roth; and if the said Jacob Miller and Jacob Bauer, (the obligors,) shall from time to time, and at all times, keep harmless and indemnify the said Peter and John, their heirs and assigns, their goods and chattels, lands and tenements, of and from all suits, payments, eosts, and charges, of and in behalf of the said recited obligations, to the heirs, assigns, &c. then the obligation to be void; The plaintiff assigns in the declaration two breaches,—1st, That David Musselman had neglected and refused'to pav the said debt of three thousand nine hundred and sixty-two dollars and sixty-nine cents to the heirs of Conrad Roth, by means whereof the plaintiffs were bound to pay divers sums of money: 2d, That the said obligors have not kept harmless and indemnified the obligees, but, on the contrary, one of the heirs had recovered a judgment before a magistrate, which was founded on and rendered upon one of the said seven obligations; and that two others of the heirs, viz. Conrad Roth (George Seiss, his assignee,) and Daniel Roth, had. each instituted suits in the Court of Common Pleas upon two of the said bonds, each of them for one thousand four hundred and forty-four dollars and forty-nine cents, and both of them were due and unpaid when this actipn was brought, by means whereof action accrued, &c.

Sufficient appears on this record to show, that the seven bonds were the purchase money of a tract of land of Conrad Roth, and sold by his executors, and that a several bond was given to each heir, for his own part, and not general bonds to all the heirs for their instalments. The pleas.were, payment with leave, &e., and conditions performed with leave, &c.,—replication, issue, &e. There is nothing in the objection as to want of issue. In Brown v. Barnet, 2 Binn. 74, the Chief Justice referred to a case decided in this court in December, 1806, (Myer v. Perry,) where the plaintiff assigned breaches in the declaration, the defendants pleaded covenants performed and non damnificatus, and then followed the words, and issue; and this was held a sufficient joining of issue. I can only say for myself, that I would be deaf to an objection of the want of replication, where the parties go on to trial as if issue was joined, on the plea of covenants performed; or where the bond is for performance of conditions, conditions performed, the defendant, on notice, may give that evidence, which he might have pleaded. Bender v. Fromberger, 4 Dall. 439. And so held in the Circuit Court of the United States for this district, in Webster v. Warren, April, 1810. M. S. Rep. Whart. Dig. 141. What I understand by this is, that it puts every thing in issue, in the notice of a defence, which protects the defendant, but it admits the execution of the deed set out, and of conditions expressed: it admits that he did enter into the condition set forth in this assignment of breaches, in the declaration, but pleads performance of them, not of any other condition, but of the very conditions; for it is an invariable rule in pleading, that whatever is alleged by one party, and not denied by the other, is admitted. Douglass v. Blair, 2 Binn. 78. And even a verdict which contradicts a fact admitted in the pleading is disregarded. 3 Cranch, 270.

The breaches assigned in this declaration are, that the bonds by which the plaintiffs were damnified were the bonds respectively given to the heirs of Conrad Both, deceased. The plea admits these were the conditions, but says they have saved the defendant harmless. If the law be so, then all the inquiry as to which these bonds were was idle, because the nature of the conditions was not put in issue. It was admitted by the pleading, and the defendant put himself upon the country on another fact, performance of the conditions.

No doubt, under our practice, on these pleas, the defendants might, have shown imposition and fraud in obtaining these bonds from ignorant and illiterate men; but in the way in which the court put this to the jury, the jury would naturally conclude that whatever might have been the, fact, the plaintiffs could not recover on account of the variance, the bonds not being given to all the heirs of Conrad Both, conjunctively, but to each heir separately, and for his own part; for they expressly say, the condition of the bond would imply, that it was only to indemnify against joint bonds given jointly to all the heirs of Conrad Both, and the law would not permit a substitution of any others, that is, bonds given to each heir for his part; and the court leave the jury in no doubt, for they say, “We think the bond of indemnity drawn in such manner, that the securities are not, bound for the bonds given in evidence.” Now, this was an opinion on the construction of a deed, which was matter for the court, and not for the jury; and the reasons given by the court are, that they vary essentially from the bonds enumerated in the condition. It was an opinion on the penning of the bonds, on the construction of a written instrument, exclusively the province of the court. It is not put to the jury on mistake in drawing the bonds, or imposition practised on the'defendants, but that, in point of law, this instrument did not bind the defendants to indemnity against these bonds; in other words, it was not in the bond. Now, in that, I think there was manifest error. It will be observed, that the bond of indemnity recites that it bears date with these bonds; that absolute bonds were given to secure the purchase money of the land to those to whom it belonged; and that those persons who brought suit on those bonds, and to whom they were given, were the respective heirs of Conrad Both. The miscalculation, in adding up the total sum, would not vary the construction, or show that there were or might be other bonds. It is difficult to conceive how it could be that there were other and different bonds. . The action was one continued act,-—simultaneous,—part of the arrangement. The bond for instalments, then before the scrivener, recites the bonds, but for brevity sake, instead of recapitulating each bond to each heir, designates them generally as the bonds given to the heirs.

Without the agreement of Miller and Bauer to indemnify the plaintiffs, they never would have entered into these obligations. These defendants were the principals in this bond of indemnity: the plaintiffs were the security of Musselman, the defendants their back bail, a term well understood in the country; and, if the construction put on the instrument be the legal one, then it provides for nothing; if these are not the bonds intended, there can be no others. The court seemed to have no doubt of the real intention, but considered it so wretchedly drawn as not to affect the design. They even seem to be of opinion, that as they considered the defendants as sureties, it should be construed differently from the same words binding a man for his own debt; and, although it may be admitted that bonds are not to be construed strictly against sureties, yet securities are as much bound, according to . the true meaning of the obligation, as principals. In 6 Yeates, 340, and 4 Ball. 79, Judge Smith has laid down the true principle of construction to be, that the surety is not liable further than the true intention and meaning of the parties expressed in the instrument, and the legal construction of the words used make him liable; but so far he is liable, and• the legal construction of the words make him answerable. All who bind themselves in a bond are equally obligors; and there- are- many cases, in the construction of bonds, where the letter- of the condition has been departed from, to carry into effect the intention of the parties. 3 Crunch, 235, shows a strong instance of a. construction of this kind. And it is a rule in the construction of all deeds,' that they are to be construed most strictly against those who make them, and most favourably by those for whose benefit they are made, as every contract is. They are to be construed with relation to the subject-matter and design, and to the apparent object of the parties.

In case of sureti.es, the instrument is not to be extended by implication, but construed according to the scope of the terms used. 9 Wheat. . So construing this bond, the court entertain no doubt of the intention of the parties, sufficiently expressed in the condition, and that it does contain an indemnity against the bonds given to the heirs respectively. The counsel for the plaintiffs mistook the ground, in requesting the court to leave the construction of this instrument, as a matter of fact, to the jury. This court has on many occasions decided, that leaving a question of law to the jury, to be decided as a matter of fact is error, as much as it is error for the court to take the facts from the jury, and to decide on them as if they were matter of la\v.

It was quite inconsistent to’ say, that the implication of law in the condition was, that each bond should be payable to the heirs of Conrad Roth, and that the law would not permit any thing else in substitution; and to instruct the jury that the bond of indemnity was so wretchedly drawn that the securities were not answerable for thé bonds given in evidence; and then to leave it to the opinion of the jury, to find that they were the very bonds described in the bond of indemnity; and, if they so find, then to give the verdict for the plaintiffs; but, if they did'not so find, then for the defendants. The question was a question of law,—the construction of the bond. The court decided it first as a question of law; (and thus, as I conceive, mistook the legal construction, the manifest intention, sense, and meaning;) and, after that left .it to the jury to decide on their own opinion, as a question of fact, contrary to what they said was the legal construction. This appears to the court to be a plain and palpable error, and the judgment is for this reason reversed, and. a venire facias de nova awarded.

Judgment reversed, and a venire facias de novo awarded.  