224 Mass. 98

March 22, 1916 - May 16, 1916

Suffolk County


Contract, Construction, In writing. Bond.

Where an application to a surety company to become surety on a bond to prosecute an appeal from a municipal court has written upon its margin the words, "Premium, $5," and the provision as to a premium reads as follows, "To pay the said Company . . . a premium of dollars ($ ) annually in advance so long as said bond shall remain in force," the judge presiding at the trial of an action of contract for premiums after the first year should supply the word "five" where the omission occurs, especially where there is oral evidence, admitted without objection, that such was the mutual understanding and agreement of the parties.

Page 99

DE COURCY, J. In September, 1910, the defendant, an attorney at law, induced the plaintiff to become surety on the bond of his client, one Hazel Mills, to prosecute an appeal from a judgment rendered against her in the Municipal Court of the City of Boston. The instrument containing the application and agreement to indemnify the said surety company was signed by the defendant, and a premium of $5 was paid upon the issuing of the appeal bond. The case was still pending in the Superior Court, and the bond was in full force, when this action was brought to recover four unpaid annual premiums.

The presiding judge [Note p99-1] excluded certain offers of proof made by the plaintiff, evidently assuming that the application and indemnity agreement embodied the complete and final record of all the terms agreed upon between the parties. But even on this assumption we do not think he was justified in ordering a verdict for the defendant. The agreement expressly provided for the payment of a premium to the company annually in advance so long as the bond should remain in force. The obvious failure to fill in the blank space where the agreement recited "a premium of dollars ($ ) annually" [Note p99-2] cannot reasonably be interpreted as showing that the parties meant "an annual payment of nothing at all" as the defendant contends. The payment of an annual premium not only is customary, but was expressly contemplated. In the margin of the application part of the agreement appear the words "Premium, $5.00." This well may be interpreted as defining the amount of the annual payment. In the light of the context, and in view of the contract as a whole, it seems apparent that it was intended to insert the word "five," where the obvious omission occurs. Accordingly, this will be supplied by the court; especially as there was oral evidence, admitted without objection, that such was the mutual understanding

Page 100

and intention of the parties. Sweetser v. French, 13 Met. 262. See Clark v. Higgins, 132 Mass. 586, 589; Hammon on Contracts, ยง 404.

In view of this conclusion as to the interpretation of the written contract, it is unnecessary to consider the further argument of the plaintiff as to the admissibility of parol evidence, based on the assumption that the written instrument was incomplete or ambiguous.

Exceptions sustained.

The case was submitted on briefs.

A. M. Schwarz & S. A. Dearborn, for the plaintiff.

C. Toye, pro se.


[Note p99-1] Dubuque, J.

[Note p99-2] The paragraph in the application containing the agreement as to premiums was as follows:

"(1) To pay the said Company, at its office in Boston, Massachusetts, a premium of dollars ($ ) annually in advance so long as said bond shall remain in force and until evidence of the discharge or satisfaction thereof, satisfactory to the Company, has been served upon the Company at its Home Office in San Francisco, California;"