66 Cal. 645 | Cal. | 1885
Lead Opinion
The cause of action in this case arose out of an undertaking on appeal, which was given by the defendants in the action, to stay execution of a judgment for possession of a tract of land, damages, and costs, recovered on the 19th of April, 1869, by John W. Littlefield, against John Nichol and Thomas Weise. By the terms of the undertaking, the obligors “ acknowledged themselves jointly and severally bound in the sum of $3,000 (being the amount for that purpose fixed by the judge of the court), that if the said judgment appealed from be affirmed, the said appellants would pay the value of the use and occupation of the property from the time of the appeal until delivery of possession thereof, not exceeding said sum of $3,000,” etc. The judgment appealed from was affirmed on the 30th of January, 1872, and on that day the remittitur from the appellate
The allegations in the plaintiff’s complaint as to the statement of his cause of action are as follows:
“ That he has been entitled to the use and occupation of said land, and the rents, issues, and profits thereof, which have been during the pendency of said appeal, and long before and after, withheld from him; * * * that * * * the value of the use and occupation of the property, from the time of the appeal until the filing of the remittitur, was more than $5,000; and that he had sustained more than $5,000 damages by reason of said appeal, and stay of execution.”
Therefore he asked judgment for the sum of $3,000—the amount specified in the undertaking. To this complaint the defendants demurred, upon the ground that more than four years had run, upon the cause of action stated herein, before the commencement of the action, and the right of action was barred. The demurrer was overruled, and this is the principal assignment of error. The question, therefore, is whether the face of the complaint shows that more than four years had run between the time the cause of action stated in the complaint accrued and the commencement of the action thereon.
As we have said, the cause of action arises out of the undertaking on appeal. Liability upon such an undertaking accrues upon the affirmance of the judgment to which the undertaking ' relates. It was so held in Crane v. Weymouth, 54 Cal. 480, and Castro v. Clarke, 29 Cal. 11, “ though,” says the court, in the last case, “ the liability may continue until appellant delivers possession of the premises recovered.” Objection, however, is made that the last case is not authority for the proposition, that a cause of action on an undertaking to pay the value of the use and occupation of property, from the time of an appeal from a judgment until delivery of the possession of the property, accrues on the affirmance of the judgment, because it was not demanded by the exigencies of the case. On the contrary,
“ The defendants’ promise and undertaking was that the appellants named in the undertaking on appeal would pay for the use and occupation of the property for the term specified in the undertaking. The delivery of the possession of the premises to the plaintiff, pursuant to the judgment recovered and affirmed, was not a condition precedent to her right to maintain her action. The affirmance of the judgment by the Supreme Court was the condition on which the defendants’ liability became absolute, though its extent in such a case might not be limited by that event.”
So, in this case, the action on the undertaking was brought after the affirmance of the judgment by the Supreme Court, and before delivery of possession of the recovered premises pursuant to the judgment, for the value of the use and occupation of the premises for the time stated in the complaint. Upon the affirmance of the judgment, the value of the use and occupation from the time of the appeal became due and payable. Non-payment operated as a breach of the condition of the undertaking; for the condition was to pay, if the judgment appealed from was
Judgment and order reversed, and cause remanded.
Sharpstein, J., Myrick, J., and Ross, J., concurred.
McKinstry, J., concurred in the judgment.
Dissenting Opinion
I dissent. I adhere to my opinion as formerly delivered, which I file as my opinion in this case.
The following is Mr. Justice Thornton’s opinion, above referred to, filed September 30,1884:
Thornton, J.—On the nineteenth day of April, 1867, Little-field recovered judgment, in the fifteenth district court for the city and county of San Francisco, against Nichol and Weise, for the possession of a tract of land, etc., and on appealing to this court an undertaking was given, signed by defendants, for the purpose of staying the execution of the judgment, by which they jointly and severally undertook and promised, on the part of the appellants, that if the judgment appealed from was affirmed, the appellants would pay the value of the use and occupation of the property, recovered from the time of the appeal until the delivery and possession thereof, not exceeding the sum of $3,000. The judgment was affirmed on the thirtieth of January, 1872, and the remittitur was filed on the same day, in the district court above mentioned. The above facts were set forth
We consider it settled in this state, that the plaintiff was not obliged to wait for the delivery of the possession of the land for which the judgment above mentioned had been recovered, before commencing his action on the .undertaking De Castro v. Clarke, 29 Cal. 11; Crane v. Weymouth, 54 Cal. 47 6) ; and further, that the affirmance of the judgment was the condition on which the defendants’ obligation became absolute. (Same cases just above cited.) The court, in ruling the latter point, in De Castro v. Clarke, adds to it the remark, “ though its extent in such a case might not be limited by that event.” (29 Cal. 11.) But though an action can be brought at the period and in the circumstances above stated, it does not follow that the cause of action is complete, or has accrued for use and occupation for a period of time for which a recovery could not be had
If it is not a contract of guaranty, such contract is very anal
“ You having expressed some doubts of the propriety of paying Mr. Gooch his draft on you for ¿6850 in our favor, we hereby engage, if you will pay us the same, we will reimburse you the amount on demand, with interest, in the event of your finding it necessary to call upon us to do so, either from the state of Mr. Gooch’s pending accounts with your London or Bengal house, or from any other circumstances.”
The facts out of which this transaction arose are as follows : Bazette & Co., who were in this action represented by plaintiffs, were in advance to Gooch, who had sent to Calcutta a cargo of
The rule that the cause of action accrued when the liability attached is the rule which must govern in all cases, and the liability here attached when the use and occupation had been had, and not before. Certainly, there was no bar for the use and occupation had within one or two years, or three or four years, next preceding the commencement of the action. The cause of action having accrued, the plaintiff has, under the statute, the full period of four years after such accrual had taken place. Assuredly, the plaintiff had not four years during which to bring an action, for a cause of action which had accrued less than four years before action brought. Hence, it follows that the bar of the statute is complete for such use and occupation as was had prior to the four years preceding the commencement of the action, but is not a bar to that occurring within the above-mentioned period of four years. As the demurrer was taken to the whole cause of action, and some part of it is not barred, for that part the complaint does not state facts sufficient to constitute a cause of action. It follows, from the foregoing, the court ruled correctly in overruling it. (Gould PL, c. 4, § 49; Young v. Pearson, 1 Cal. 448; Stoddard v. Treadwell, 26 Cal. 294.) It further follows that the court properly refused the instruction designated as second in the transcript, and that it committed no error in refusing the third request. This latter request was based on the assumption that the action was commenced on the ninth of September, 1876, whereas it was brought on the seventh of that month.
As to the questions arising on the offers of defendants in connection with the receipt dated twenty-fifth of March, 1876, signed “B. S. Brooks, attorney for plaintiff,” with the words “ Littlefield against Nichol et al.” at the head of it, we think it