
    John U. Ingham vs. William Wilson.
    
      Pleading — Bond, Construction of.
    
    In an action of debt on a bond for the payment of money, the plea of non-damnificatus is bad on general demurrer.
    A bond reciting amongst other things that the obligors were willing to indemnify and save harmless the obligee against future liabilities, followed by a condition to pay a certain sum of money in instalments, held to be a money bond, and not a bond to indemnify.
    BEFORE GLOYER, J., AT KERSHAW, SPRING TERM, 1858.
    Tbis was an action of debt on a bond, as follows:
    
      State of South Carolina, Kershaw District. Know all Men bj these Presents, that we, Arcbelons Payne, William Wilson, and Jane Wilson, of said District, are jointly and severally held, and firmly bound, unto John U. Ingram, in tbe penal sum of four thousand dollars, to the payment of which well and truly to be made, we bind ourselves jointly and severally, each and every of us, our heirs, executors and administrators, firmly by these presents.
    Sealed with our seals, and dated the sixth day of September, Anno Domini one thousand eight hundred and forty-eight, and in the seventy-third year of the Independence of the United States of America.
    Whereas, the above named John U. Ingram, at our instance and request, has filed his petition in the Court of Equity, (dated 18th August, 1848,) praying to be appointed the committee of the estate and person of Mrs. Eachel Leigh, now residing in tbe said district; and whereas there are many risks and responsibilities incurred and likely to be undertaken by the said Ingram, and we, the undersigned, being next of kin and heirs at law of said Rachel Leigh, being willing to indemnify and save harmless the said Ingram, against any future liabilities, do enter into this bond, and assume this obligation, as an inducement to said Ingram to undertake the duties of said appointment, it being well understood that this bond is to be an addition to, and over and above the regular commissions to which the said Ingram, as committee aforesaid, may be by law entitled.
    Now, the condition of the above obligation is such, that the said Archelous Payne, William Wilson, and Jane Wilson, shall well and truly pay to the said Ingram, the sum of two thousand dollars in four equal annual instalments, in the following manner, to wit: the first five hundred dollars, twelve months from the date of the bond which tbe said Ingram is to give to the Commissioner in Equity upon taking into charge and assuming the management of the said estate, the balance one-third in each year, for three years thereafter. The date of payment in each year to be the same date that the said bond to the Commissioner in Equity bears. Then this obligation to be void and of none effect, or else to remain in full force and virtue.
    Akchelous PayNe. [l.s.]
    William WilsoN. [l.s.]
    JANE WilsoN. [l.s.]
    Signed and sealed in the presence of—
    (the name Archelous erased twice, and the name Archelous interlined twice before signing and sealing,)
    Jesse Horter.
    The defendant craved oyer, set out the condition of the bond, and pleaded, non-damniftcatus. Tbe plaintiff demurred generally.
    His Honor sustained tbe demurrer and tbe plaintiff took a verdict in tbe usual form.
    Tbe defendant appealed, on tbe ground, that tbe plea of non-damniftcatus was a proper plea to tbe bond in question.
    Kershaw, for appellant.
    The condition of tbe bond is controlled by the recital, Gyles vs. Vaullc, 2 Sp. 468. That makes it a bond to indemnify to tbe amount named in tbe condition, but continuing only for four years, and to tbe extent only of five hundred dollars per annum. Tbe losses to be made good without diminishing tbe regular commissions of tbe committee.
    Shannon, contra.
   Tbe opinion of tbe Court was delivered by

WhitNER, J.

Tbe pleadings in tbe present case involve a question as to tbe character of tbe obligation sued on; whether it is to be regarded an indemnity bond or a money bond. Justice is to be done by enforcing tbe performance of tbe contract, according to tbe sense in which tbe parties mutually understood it at tbe time it was made, and this is to be ascertained from tbe terms they have used.

Tbe construction is to be upon tbe entire agreement and not merely upon disjointed or particular parts. The whole context must be considered in endeavoring to collect tbe intention of tbe parties. Every part of tbe instrument shall if possible be made to take effect. Such are tbe familiar principles collected by Cbitty on Contracts, 73-83, and universally recognized.

Tbe obligatory part of this bond as well as tbe condition are congruous and unequivocal, and amount to an express stipulation to pay a definite sum in annual instalments. Being under seal a consideration is implied and tbe contract is complete. Tbe recital in this contract, it is insisted, explains and qualifies tbe stipulation and in fact changes its entire character. This brings us to tbe subject-matter of tbe agreement in affixing a meaning to tbe terms used that our construction may be reasonable and the different parts made consistent if practicable.

Tbe obligee was about to assume tbe care and management of tbe person and estate of a lunatic, with tbe attendant “ risks and responsibilities,” incident to tbe trust imposed and secured by a bond on bis part — an additional inducement “ over and above tbe regular commissions” was held out to tbe obligee to undertake this service. The bond in question by tbe next of Idn and heirs at law of tbe lunatic with an obligation to pay a definite sum for a specific, hazardous, and responsible service was entered into. Tbe compensation provided by the regular commissions was properly deemed inadequate by tbe parties, and those interested in tbe estate and upon whom was cast tbe moral duty of caring for tbe person, “ assumed this obligation” evidently intended to secure a proper compensation to one who at their instance and request, was thus induced to render tbe service.

Tbe indemnity spoken of, it must be remembered, is not incorporated in tbe condition as a thing to be done by tbe obligors upon a future contingency, when it shall be ascertained that loss has accrued. It is found in tbe previous recital and in juxtaposition with the other circumstances that constituted tbe consideration, moving them to an express agreement to pay money. Such a term in tbe recital that the obligors are “ willing to indemnify and save harmless” tbe obligee is too vague and equivocal to over-ride tbe express stipulation in tbe condition. It is controlled by tbe context. When tbe condition of a bond is merely to indemnify, this plea is sufficient, Lut when the condition stipulates to perform any particular act, performance must be specially pleaded. 1 Saund. 116, n. 1.

The motion to overrule the demurrer is dismissed.

O’Neall, Wardlaw, G-lover and Muwro, JJ., concurred.

Motion dismissed.  