Dowiat v. The People.

above bounden Peter Dowiat shall pay to all persons all damages that they may sustain, either in person or property or means of support, by reason of the above bounden Peter Dowiat obtaining a license, as aforesaid, for selling or giving away intoxicating liquors, then this obligation to be void; otherwise to remain in full force and effect.

"No. 2. Bond of the State of Illinois. Peter Dowiat. Bond approved and license issued October 31, 1899.

J. D. BAIRD, Village Clerk."

Appellants objected to the introduction of the bond, not because it was not executed by appellants, but because they claimed it varied from the bond described in the first count of the declaration, and because, by the second count, no breach of said bond is assigned, because it is not conditioned according to the statute, and because it creates no liability against appellants. But the court overruled the objections and admitted the bond in evidence, and appellants preserved an exception.

And appellants admitted that, at the time of the occurrence of the alleged facts stated in the declaration, Peter Dowiat was keeping a dram-shop under a license issued to him by the said village of Himrod; that said bond was given in connection with issuing that license, and was left with the proper custodian of the records of said village; and that said license ran for a period of three months, which had not expired when the alleged sales of intoxicating liquor were made to the husband of said Lucy Richardson.

The evidence shows that Horace Richardson was a prosperous farmer, living with and supporting his wife, Lucy Richardson, on a farm about eight miles south of Himrod, in Vermilion county. On the morning of December 28, 1899, he took a wagon load of timbers to the coal mine at Himrod, and after unloading them at the mine, fed his team and went to the saloon of Peter Dowiat, where he remained

from about 1:30 to 5:30 P. M., during which time he purchased and drank there considerable beer and whiskey, becoming quite drunk from the effects thereof. About half-past five o'clock he left the saloon with a bottle of whiskey which he purchased there, and started to drive his team toward his home. The next morning his dead body was found on the road, between his house and Himrod, and it bore evidence of having been dragged some distance. The wagon had been run against a stump on the side of the road, where the two hind wheels and lumber bed of same were left, and the front wheels, with the horses attached thereto, were found in the stable lot of the father-in-law of Richardson, who lived on that road.

Because in the condition of the bond admitted in evidence appear these words, "obtaining a license as aforesaid for," which are more than those called for by the terms of the statute under which the bond was given, it is insisted by counsel for appellants that its validity as a statutory bond is destroyed, and that giving effect to those words in the bond, then appellants are not liable to appellee on the facts averred and proven, because no damages have or can accrue to appellee by reason of said Dowiat obtaining a license as aforesaid for selling or giving away intoxicating liquor.

We can not concur in this view, for this bond is to be construed like any other contract "to discover and give effect to the intention of the parties, so that performance of the contract may be enforced according to the sense in which they mutually understood it at the time it was made; and where the intention of the parties to the contract is sufficiently apparent, effect must be given to it in that sense, though violence be done thereby to its words; for greater regard is to be had to the clear intent of the parties, than to any particular words which they may have used in the expression of their intent." 1 Chitty on Conts. (4th Am. Ed.), 104-5; and Walker v. Douglas, 70 Ill. 445.

And where it is apparent upon the face of a written instrument that a mere clerical error has been made, and it is also apparent from the face of the instrument what the con

Dowiat v. The People.

tract should be, to make it as intended, the court will correct such error by construction." Beach on Contracts, Vol. 1, Sec. 707.

"A reasonable construction should be given every contract, for it should not be presumed that the parties intended anything either senseless or absurd. A rigid adherence to the letter often leads to erroneous results, and misinterprets the meaning of the parties. Inconsistent clauses must be construed according to the subject-matter and the motive; and the intention of the parties, as gathered from the whole instrument, must prevail over the strictness of the letter. The fact that the construction contended for would make the contract unreasonable, and place one of the parties at the mercy of the other, may be taken into consideration. A clause or a word may be rejected which is irreconcilable with the nature of the contract or the general design of the parties; or to which no meaning can be assigned in view of the connection in which it is used, and of the whole instrument." Ibid. Sec. 708.

"The general rule is that a contract should, if possible, be so construed as to render it binding on both parties and not so as to render it oppressive or inequitable as to either." Ibid. Sec. 709.

And "words which in view of the purpose of the transaction are meaningless or inconsistent with the manifest intent may be rejected as surplusage, if without them the contract may be sustained, and be given effect according to the intent." Ibid. Sec. 718; Holmes v. Parker, 25 Ill. App. 225; and same case in 125 Ill. 478.

It therefore seems clear to us that appellants, in executing this bond, intended to comply with the provisions of the statute under which it was given and that the words "obtaining a license as aforesaid for" were inserted in the condition thereof by mistake, and should be treated as surplusage, and the bond considered as though they were not

in it.

As was said by Chief Justice Marshall in Cooke v. Graham's Admrs., 3 Cranch (U. S.), 229 (1st Ed., Vol. 8, p. 228), "There are many cases on the construction of bonds, where the letter of the condition has been departed from to carry into effect the intention of the parties."

Thus treated and considered, it is, in effect, a good statutory bond, and as such, is properly declared upon and was properly admitted in evidence under the pleadings.

Counsel for appellants also contend that the Circuit Court improperly held the sureties on this bond liable thereon for damages which were occasioned to the usee in this case by reason of the principal therein having sold or given away intoxicating liquors to her husband, while by the express terms of the bond, they only obligated themselves to pay for such damages as might be sustained by reason of the principal obtaining a license for selling or giving away such liquors.

While the law undoubtedly is that a contract of suretyship is strictissimi juris, yet this rule relates to the application of the contract after it had been construed and not to the construction itself. The contract should be construed by the same rule that all other contracts are. Brandt on Suretyship and Guaranty, 2d Ed., Vol 1, Sec. 92; and Stevens et al. v. Partridge, S8 Ill. App. 665.

We have examined the instructions which were given and those that were refused in the light of the criticisms made by counsel for appellant to the rulings of the court thereon, and find that when those which were given are read as one charge, they contain a fair and reasonably accurate exposition of the law applicable to the evidence and issues. tried; and that all which was proper in those refused, was contained in those given.

And we have carefully considered all the evidence contained in the bill of exceptions in this record and find it warrants the verdict rendered, the facts in this case being very similar to those in the case of Smith v. The People, 141 Ill. 447, where a recovery upon a similar bond was sustained. Finding no reversible error was committed by the Circuit Court in the proceeding in this case and that the result reached is a fair and proper one under the pleadings and the evidence, the judgment of that court will be affirmed.

Mt. Olive & Staunton Coal Co. v. Herbeck.

Mt. Olive and Staunton Coal Co. v. Henry Herbeck.

1. MINES AND MINING-Laws for the Protection of Miners Not to be Set at Naught by Agreements.-It is not within the legal power of a mine owner and his miners, by agreements, to set at naught statutory requirements enacted for the purpose of protecting the lives and limbs of men engaged in mining coal.

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Macoupin County; the Hon. ROBERT B. SHIRLEY, Judge, presiding. Heard in this court at the May term, 1900. Affirmed. Opinion filed December 7, 1900.

CHARLES W. THOMAS, attorney for appellant.

LANE & COOPER, attorneys for appellee.

MR. PRESIDING JUSTICE HARKER delivered the opinion of the court.

This is an appeal from a judgment of $1,500, recovered by appellee in a suit against appellant for injuries sustained while working in appellant's coal mine. The negligence charged against appellant was failure to supply timbers for props, whereby the roof of an entry, which appellee and others were "driving," fell upon appellee and broke his leg.

The evidence in the record shows that appellee, his son, and one John Rademacher, were working together in appellant's coal mine at Staunton, "driving" the east entry of the mine. There was some conflict in the testimony as to the terms of the contract under which they were working, but in the view taken by us of the case, that is not material.

On the morning of the 15th of July, 1898, while the three men were engaged in loading coal which had been. "shot" the evening before, a large piece of slate became detached from the roof and fell, instantly killing Rademacher and breaking one of appellee's legs. There were no props in the entry, although the car driver had, on the 13th and 14th, been called upon for props by both Rade