1. A bond given at the port of New York, when certain goods were
imported, was conditioned that the importer should pay $425, that
being the estimated duty based on the invoice, or the amount which
should be subsequently ascertained to be due, or that he should
within three years withdraw and export them or transport them to a
Pacific port. That sum was paid on the withdrawal of the goods, but
it was less than the duty which was afterwards regularly
liquidated. A suit was brought against the surety for the balance.
Held that he was not liable therefor.
2. The importer is liable for the duty, but the bond is
discharged as to the surety by the performance of one of its
alternative conditions.
3. "Or" is never construed to mean "and" when the evident intent
of the parties would be thereby defeated.
Page 98 U. S. 143
The facts are stated in the opinion of the Court.
MR. JUSTICE BRADLEY delivered the opinion of the Court.
This is an action against the surety upon an ordinary bond for
duties, given at the time of importation, upon the estimated
amount, before the duties were regularly liquidated. The estimated
duties, based on the invoice shown by the importer, were $425, and
the condition of the bond was, that within one year the importer
should pay to the collector $425, or the amount of the duties which
should be ascertained to be due, or should within three years
withdraw and export them, or transport them to a Pacific port.
About a month after importation, the goods were withdrawn by the
importer, upon payment of the sum named in the bond; but the duties
were not regularly liquidated until about a month later. The
liquidation showed that the duties payable were $676.75, instead of
the $425 which had been paid. This suit was brought to recover the
balance. The surety pleaded payment of the sum named in the bond,
as a fulfillment of one of the alternate conditions. The counsel
for the government contended that the condition ought to be
construed not alternatively, but as intended to secure the payment
at all events of the true amount of duties, unless the goods should
be exported or sent to the Pacific Coast within three years. It was
shown that the bond was in the form long in use, and had been
approved by the Secretary of the Treasury, and it was undoubtedly
intended to cover the full amount of the duties, whether the
original estimate reached that amount or not. The word "or" is
frequently construed to mean "and," and
vice versa, in
order to carry out the evident intent of the parties. But such a
change cannot be made in this case, for if we make "or" to read
"and," the condition would require the importer to pay the actual
duties in addition to the $425. Besides, there are two other
alternate conditions dependent upon the same word "or" -- namely,
that the bond should be void if the goods should
Page 98 U. S. 144
be reexported, or if they should be transported to the Pacific
Coast, within three years. This shows that the word "or" was
intended to have its ordinary sense. To make the condition mean
what the counsel for the government contends it means would
require, in place of the word "or," the addition of several words,
so as to make it read, "$425, and any additional amount of duties
to be ascertained to be due and owing on the goods." The court
would not have been justified, in this case, in making such a
change and addition, by way of construction.
Of course the importer is liable, without reference to the bond,
for the entire amount of duties. But the surety is only bound by
the condition of the bond. That is all the obligation which he
assumes; and as it is clear, in this case, that the condition is in
the alternative, the bond was discharged by the performance of one
of the alternative conditions.
The point was sufficiently raised on the trial to be reviewed
here. It is true, the request for a nonsuit was not sufficient,
because the court was not bound to grant a nonsuit. And it is also
true that the defendant neglected to ask the court to direct a
finding for the defendant. But on the proofs made the judge assumed
to direct a verdict for the plaintiff, and to this direction the
defendant excepted. We think this is sufficient to enable us to
take cognizance of the defense.
As this is the only point made in the assignment of errors, we
make no observation upon the other points raised at the trial.
The judgment of the circuit court will be reversed, and the
cause remanded for a new trial, and it is
So ordered.