son. Opinion of the Court. in urging that the word surety was only descriptive of the perBut to so hold would be to do violence to the language employed. But it is urged that the manner in which they signed the agreement has fixed their character to be that of joint and several contractors. The names are signed at the usual place and each under another, but there is drawn to the right hand of the signatures a vertical line and the word contractors" is written to the right of it. In construing contracts and written agreements, the whole context should be considered, and the intention of the parties ascertained from it, and not from extrinsic evidence. When thus considered, it is manifest from this agreement that appellants only intended to become guarantors for the performance of the contract by their principal, who was evidently the con tractor. The mere fact that the word "contractors" was written opposite their names should not control the manifest intention of the parties which appears from the body of the instrument. But even admit they were contractors, what was the contract? M. P. Stull contracted with the directors that he would erect the house, and the other appellants contracted with them that he should, and, failing to do so, they would make good the damages the directors might sustain. To this and only this extent did they contract, and for that purpose and in that sense were they contractors, and not that they would build the house jointly with M. P. Stull, or severally, independently of his action. Again, the contract of a surety is strictly construed, and his liability is never extended beyond the terms of his agreement, or, at least, its manifest purport. In case of doubt, the doubt is generally, if not universally, solved in his favor; and in this case, neither by the terms or purport of this agreement, are the appellants contractors for building the house, as partners or joint undertakers for its construction, but they are simply collateral contractors for the performance of the agreement of their principal. In this view of the case, it was proper that Leffler Stull Opinion of the Court. Syllabus. should have been permitted to testify that he and his coappellant had nothing to do with hiring appellee, or any other workman, on the house, and that they nor either of them authorized M. P. Stull to employ appellee or any other person, or that they had any interest in the contract beyond their liability as sureties. They had a right to prove that they had no interest in the contract entered into independent of the agreement. It may be that such evidence was not absolutely necessary, but it tended to prove that they were not in anywise liable, and hence was pertinent to the issue, and it should have been admitted. From what has been said, it is apparent that appellee's instruction was erroneous. It informed the jury that appellants, as a matter of law, by the terms of the contract, were joint builders and contractors. This, we have seen, is not the true construction of the agreement. For the errors indicated the judgment of the court below must be reversed and the cause remanded. Judgment reversed. FREDERICK HARBERS et al. v. JOHN TRIBBY. 1. CONTRACT-procuring enlistment-construction. Where a party was employed to procure enlistments in the military service of the United States for the benefit of a town, so as to exempt it from draft in the late civil war, and the party so enlisting was to receive $400 for each man so enlisted, and credited to the town before the day of the draft: Held, that the plaintiff, to recover under such contract, must not only show that he procured an enlistment, but, also, that the same was credited to the town before the day set for the draft, by competent proof. 2. EVIDENCE-certificates of army officers. In an action to recover a stipu lated compensation for an enlistment for the benefit of a certain town, the plaintiff read in evidence, against defendant's objection, the certificate, not attested by any seal of office, of an enlisting officer of the United States, and a certificate of the acting assistant provost-marshal for the State of Syllabus. Opinion of the Court. Illinois, without official seal, to show the fact of enlistment to the credit of the town: Held, that there was no law making such certificates evidence in the courts of this State in controversies between its citizens. 3. EVIDENCE-official character. In such a case the fact that a person is an officer of the United States army, with power to give certificates of enlistment, can not be shown by proof that he acted as such. A certificate under the seal of the war department is the best evidence of his official character and authority. WRIT OF ERROR to the Circuit Court of Woodford County; the Hon. S. L. RICHMOND, Judge, presiding. Messrs. BURNS, CASSEL & PUTERBAUGH, for the plaintiffs in error. Messrs. BANGS & SHAW, for the defendant in error. Mr. JUSTICE BREESE delivered the opinion of the Court: This was an action of assumpsit in the Woodford Circuit Court, on an alleged promise by defendants, to pay plaintiff $400 for each man he should procure to be enlisted, and credited to the town of Lynn, when the credit should be given, so as to exempt that town from a draft for the quota thereof, under the proclamation of the President of the United States calling for 300,000 men. The defendants were subject to this draft, and were desirous of avoiding it in the manner alleged. The declaration contains, also, the common counts for work and labor, etc., but the cause was tried on the special count, resulting in a verdict and judgment for the plaintiff for $532.37, being the $400 claimed, and interest thereon at six per cent per annum. To reverse this judgment the defendants bring the record here by writ of error, and have assigned various errors, the most important of which is, admitting improper evidence. The plaintiff, to sustain the issue on his part, introduced in evidence, against the objection of defendants, the certificate of a person signing himself Lieut. Col. Lowe, purporting to be a certificate of enlistment; and the plaintiff testified that he was a regular enlisting officer of the United States, at Cairo. He also introduced in evidence, against the objection of the de Opinion of the Court. fendants, a certificate signed "James Oakes, Brev't. Brig. Gen. and A. A. P. M. G., Ill.," dated August 11, 1865, addressed to Messrs. Grover, Ayers & Son, Springfield, Ill., certifying that James Wilson, colored, of a certain height, "enlisted, January 25, 1865, at Paducah, Ky., by Lieut. D. McIvor, 122d Infantry, Ill. Volunteers, A. C. M., dist. West Kentucky," and that he had been credited on the records of his office to the town of Lynn, county of Woodford, State of Illinois, sub-district 50, in eighth congressional district. He also proved, by N. Bateman, the execution of this certificate by Oakes, and that he was, at its date, "acting assistant provostmarshal general" of Illinois, but was not provost-marshal of the eighth district of Illinois. Capt. Isaac Keys was provostmarshal of the eighth district. Witness also said the credit of enlistment made by Oakes, should have appeared on the books of the district marshal. Reports to districts were not regularly made to district marshals, but transcripts were furnished from his books when requested. We are not advised of any law making these certificates evidence in the courts of this State, in controversies between its citizens. We have a statute, long since enacted, and of frequent application, making the official certificates of registers and receivers of the several land offices of the United States evidence in our courts, of certain facts. The certificate of no other officials of the Federal government are such, unless, of certain officers attested under their seal of office. There is no evidence that Lowe was an officer of the United States army, and competent, from his position, to give such a certificate. His official character is not evidenced by his acts, for it is notorious, that during the late conflict between the States, official power was assumed in many cases. A certificate, under the seal of the war department, would be the best evidence of his official character and authority. The same may be said of Oakes' certificate; and, in addition, it may be said of that, it appears to be a mere private matter, intended for the benefit of Grover, Ayers & Co., of Springfield, to whom it was addressed. And beside all this, neither certificate shows Opinion of the Court. Syllabus. the man was, in fact, credited to the town of Lynn; and The judgment is reversed and the cause remanded. Judgment reversed. 1. BAILMENT-hiring-burden of proof. In an action by the owner of a team of horses to recover damages for an injury to them against the hirer for want of proper care, the defendant asked the court to instruct the jury, that if the team hired was in good condition when taken by defendant, and was not returned in such condition, and if the defendant had shown prima facie that he took ordinary care of the team, then the plaintiff must show, by a preponderance of testimony, that defendant misused the team so as to cause the injury complained of, which the court refused: Held, that the refusal was proper. 2. Where goods, when placed in the hands of a bailee, are in good condition, and they are returned in a damaged state, or not returned at all, in an action by the bailor against the bailee, the law will presume negligence on the part of the latter, and impose upon him the burden of showing that he exercised such care as was required by the bailment. 79a 326 62 59 91a 2220 59 62 f93a 2589 |