Opinion
April 15, 1936.
April 20, 1936.
Bonds — Construction — Bond conditioned for appearance at hearing in nonsupport case — Act of May 24, 1917, P.L. 268.
1. Under the Act of May 24, 1917, P.L. 268, the petitioning wife is the beneficiary of a bond entered by defendant in a proceeding by the wife for support, conditioned upon the appearance of the defendant at the hearing.
2. Bond entered by defendant in a proceeding by the wife for support held, upon consideration of the entire bond and of the attending circumstances, to be conditioned upon the appearance of defendant at a further hearing.
3. A provision in a contract which is capable of two or more meanings should be construed most strongly against the obligor.
Appeal, No. 60, April T., 1936, by respondent surety, from judgment of County Court, Allegheny Co., Commonwealth Docket, 1934, No. 432, in case of Commonwealth v. Joseph Friedman and Max Rosenblum, surety.
Before KELLER, P.J., CUNNINGHAM, BALDRIGE, STADTFELD, PARKER, JAMES and RHODES, JJ. Affirmed.
Rule for judgment on bond.
The facts are stated in the opinion of the lower court, McKIM, P.J., SOFFEL and McBRIDE, JJ., opinion by SOFFEL, J., as follows:
This case is before the court on a rule to show cause why judgment should not be entered in the sum of $500.00 for the Commonwealth of Pennsylvania to the use of Anna Friedman against Joseph Friedman and Max Rosenblum.
At a hearing in the Desertion and Non-Support branch of the County Court held April 16, 1934, on the petition of Anna Friedman for support, the late Judge Kennedy ordered the defendant, Joseph Friedman, to pay the sum of five dollars a week for the support of his wife. The order made at the time of said hearing contained this provision: "It is further ordered that the defendant enter bond with surety in the sum of five hundred dollars for further hearing on September 4, 1934." Pursuant to said order, the defendant, as principal, and Max Rosenblum, as surety, on April 18, 1934, filed their bond in said amount "conditioned that if the said defendant pay the costs of prosecution and for defendant's appearance for further hearing on September 4, 1934, at 9:30 A.M."
At a hearing held September 4, 1934, it appeared that the defendant had absconded. Judge Kennedy entered the following order forfeiting the bond:
"And now, Sept. 4, 1934, the defendant Joseph Friedman being duly called and not answering and the surety Max Rosenblum being duly called on to bring the body of the said defendant and failing to do so, this Recognizance is decreed and adjudged to be forfeited."
On March 20, 1935, a rule was granted upon the defendant and the surety in said bond to show cause why judgment should not be entered against them in the sum of $500.00. The case is now before the court on said rule. The surety, Max Rosenblum, has filed an answer denying that the bond was conditioned "for defendant's appearance for further hearing on September 4, 1934, at 9:30 A.M., and that the petitioner is the beneficiary of the bond."
We shall consider first the condition of the bond. The bond in the instant case is recorded in Desertion and Non-Support Bond Book Vol. 6, page 192 — a copy of it has been attached to the petition. An examination of the bond book discloses that said bond was CONDITIONED, that if the said defendant pay the costs of prosecution . . . . . . . . . . and shall pay to the Desertion Probation Officer of said court the sum of . . . . . . per week as provided by Order of Court in this case made
For defendants appearance for further hearing on September 4th, 1934, at 9:30 A.M.
The underlined portion is written. The part beginning with "CONDITIONED" and ending with "made" is printed. The part beginning with "For" and ending with "A.M.," which has been underlined, is written. The "F" in "For" is capitalized. The printed line commencing with "and" and ending with "made" is crossed out with a stroke of a pen. The word "and" is not crossed out in its entirety, the pen stroke begins about the middle of the word "and".
It is the contention of the surety that the bond in question was not conditioned for the appearance of the defendant at the hearing on September 4, 1934. This argument is based on the contention of counsel that the word "and" appearing in the printed matter of the bond has been crossed out. With this contention we do not agree. From the orders made in said case, it was apparent that Judge Kennedy had issued an order requiring a bond "for further hearing on September 4, 1934". The clerk who entered the bond apparently crossed out the printed line as not being material. The portion of the condition printed but not crossed out, reading "that if said defendant pay the costs of prosecution and" is evidently surplusage, because the original order states: "The costs of the proceedings to be paid by County".
We believe there is no conflict between the written portion and the printed portion of the condition of the bond. We believe the condition is clear. The bond is conditioned for the appearance of the defendant on September 4, 1934. Even if we were to concede that there was conflict between the printed and written portions of the condition of the bond, we would be constrained to hold where written and printed portions of a contract are repugnant to each other, the printed form must yield to the written clauses of the instrument, as the latter is presumed to be the deliberate expression of the real intent of the parties. Haws v. Insurance Co., 130 Pa. 113; Grandin v. Insurance Co., 107 Pa. 26; Duffield v. Hue, 129 Pa. 94, 107. Further, a provision capable of two or more meanings should be construed most strongly against him whose undertaking it is, and the circumstances surrounding the parties when the contract was made and affecting the subject to which it relates form a sort of context, that may be resorted to in doubtful cases to aid in arriving at the meaning of the contract. Bole v. Fire Ins. Co., 159 Pa. 53; Grandin v. Insurance Co., 107 Pa. 26; Alcorn Combustion Co. v. Kellogg Co., 311 Pa. 270. "Where a contract may have two interpretations, courts will follow that which the parties have put upon it and acted upon." Gass's Appeal, 73 Pa. 39.
We therefore conclude that the surety in signing the bond undertook to have the defendant present for hearing on September 4, 1934. This he failed to do.
We now consider the second reason advanced by the surety for release from the obligations of the bond, to-wit, that the petitioner is not the beneficiary of the bond. We see no merit in this argument. The deserted wife is the beneficiary of the bond in the instant case. The Act of Assembly, May 24, 1917, P.L. 268, specifically provides that (bottom Section 1, first paragraph):
"the court may discharge a defendant upon his own recognizance, in the custody of a desertion probation officer or other person, subject to such conditions as the court may, in its discretion, impose."
In the instant case it imposed the bond aforementioned. Said Act further provides (Section 2, paragraph two):
"In case of the forfeiture of a bail-bond in any such proceedings, the court may order that any sum collected, by suit or otherwise, shall be paid in whole or in part, to such parent, wife, child, or children. In case of the forfeiture of any bond or recognizance with or without surety, given as security under any order of court, any sum collected thereon, by suit or otherwise, shall be paid to such parent, wife, child, or children."
The rule for judgment on the bond is therefore made absolute.
Respondent, surety, appealed.
Error assigned, among others, was order making absolute the rule for judgment.
E.P. Curran, with him I. Elmer Ecker, for appellant.
S.L. Fuss, with him Duff, Scott Smith, for appellee.
Argued April 15, 1936.
The judgment is affirmed on the opinion of Judge SOFFEL of the County Court.