Dehler v. HeldDehler v. Held
- Reporters:
- Before:
- Walker
delivered the opinion of the Court:
This wаs an action of debt, upon a forthcoming bond executed “by Charles Held, the execution debtor, and Jacob Meister, as his surety, to Frederick Dehler. The brеach •assigned is, that the obligors failed to deliver the property to plaintiff in error, at the time and place named in the condition of the bond. To this declaration, defendant in error Meister, pleaded first, non est factum, and secondly, that a portion of the property levied upon by plaintiff in error under thrеe different executions, in his hands, as a constable, from a justice of the peace of the county, and against Held, at the time the levy was made, was subjеct to a chattel mortgage given by Held to Hen & Gintz, to secure a debt of §400, which he owed to them, and which was to mature at six months from the date of the mortgagе; that it was duly executed, and properly acknowledged before a justice of the peace in the proper district, and that he had entered the memorandum required by the statute in his docket, and that it was regularly recorded in the proper office.
The mortgage provided that Held, the mortgagor, might retаin possession of the property for two years, but that in case it should be attached or levied upon under execution, then the mortgagees might reducе it to possession, and after giving notice as specified, sell it, and apply the proceeds to the payment of their debt. The property being thus held undеr this chattel mortgage at the time the levy was made, and the debt not due and unpaid, after the levy was made by plaintiff in error, Heu & Gintz, by virtue of the power contаined in the mortgage, seized and reduced the property into their possession, and after giving the required notice, sold the same for a sum less than their debt, and аpplied it towards paying the same, whereby defendant Meister was prevented from delivering the property to plaintiff in error, according to the terms and conditions of the bond sued upon.
The third plea averred that all of the property naShéd, in. the forthcoming bond, and not embraced in the mortg®s&y&asJ duly delivered by Mеister to plaintiff in error, in the* same- • condition it was when the bond was given, and a/‘the-‘íiih&S and place, and in the manner required by the bond. \ 7 Tny,
To the second plea, рlaintiff in error filed a generaAffimmis* rer, and a special demurrer to the third plea, and assignbcf-’ special causes, that the plea avers performаnce generally, without stating the manner, and that the plea does not crave oyer of the writing obligatory, and is otherwise uncertain, informal and insufficient.
The court below overruled these demurrers, and plaintiff failing to answer further, the court rendered judgment on the demurrer, in bar of the action, and to reverse that judgment plaintiff brings the case to this court, on error.
The only question arising on this record is, whether these pleas present a defense to the action against Meister.
As a general rule, where a party binds himself to perform an act, he is held to its performance, except where it is rendered impossible by the act оf God or the public enemy. The mere fact that it may be inconvenient, or attended with loss, is no excuse. And that is all that can be said of this obligation. Its performаnce was in nowise rendered impossible. Meister could have redeemed the property by paying the mortgage debt, and thus have retained it to answer the condition of the bond, as the mortgagees would have been compelled to receive the money and discharge the property from the mortgаge had he tendered the debt. It was, therefore, within his power to perform the condition of this bond. Having failed to deliver the property as he and his princiрal had agreed, in law, there was a breach and an action thereby accrued to the plaintiff against the obligors.
Conceding the second pleа to be true, and it is admitted by the demurrer, it does not constitute a bar to the action. If the facts exist as stated in the plea, what would be the measure of the dаmages ? Evidently, the amount of the loss sustained by the execution creditors by the failure of defendants in error - to deliver the property at the time and place fixed by the bond. Had the property been delivered, what would have .been the rights of the judgment creditors? Only to have Solti’it under the executions, subject to the рrior mortgage, ,’ and-thus have rendered the surplus, over and above the amount ” of,the mortgage debt, subject to their executions. If, as the “‘■plea allegеs, the property levied upon was not worth as much as the mortgage debt, then a sale would have availed nothing, and they have sustained no loss by a failure to deliver the property to the constable.
Suppose the constable had been sued by the plaintiffs in these executions, for refusing to seize the property under the executions, and he had shown that the property was worth no more than the lien of the mortgage, would any one contend that the measurе of damages against him should be the full value of the property ? Assuredly not. And why? Because plaintiffs in execution had sustained no damage by the officers refusing to make the levy. But had it appeared that the property was worth more, then he would be liable for the amount of the surplus. And why should not the same rule apply to Meister ? Ho reason is perceived.
In an action of covenant or debt, on a bond with a condition, the true measure of damages is the loss sustained by thе. covenantee or obligee. This, then, was simply a question of the measure of the damages. By failing to perform the condition of the bond there was a breach, and a right of action accrued, the effect of the bond being, that Meister would deliver the property as he had bound himself, or would pay such damаges as the plaintiffs in execution sustained by his failure. And we have seen that the property being admitted to have been worth less than the amount of the lien of the mortgage, there could be no damages beyond a nominal sum, which the law implies. If, however, it should turn out that the property was worth more, then the excess, whаtever it might be, would be the measure of the damages, as that would be the extent of the injury sustained by plaintiffs in execution? - -- That was all their executions could have reached the‘c - levy and a sale. The plea was bad, because it was pleaqétbas’ a bar to the action, and we have seen it was not an аns/vpiz to. ^ the breach, and the demurrer should have been sustained. I:’
The third plea, although informal, in substance pre^n|g|lgij> ^ defense to a part of the recovеry. So far as it allegésfe^tiiat; ’ property levied on under these executions had been delivered^‘7 and which was not held by the mortgage, it was an averment of thе performance of the condition to that extent. It can never be held that a part performance of an obligation, accepted by thе obligee, will be held for nothing. It is good, and must be held to discharge the obligor so far as it goes, but no farther. If the property admitted by the demurrer to have been dеlivered to the constable was sufficient to pay a portion of the judgments, to collect which the executions were issued, then it would lessen the sum to be rеcovered, to that extent. The extent of the recovery would in no case be more than those executions, with interest and costs, and the procеeds of the property thus delivered should be deducted. Although informal, the plea, in substance, presented a defense to a part of the recovery. Being informal, the demurrer should have been sustained for that reason.
As the court erred in failing to sustain the demurrer, the judgment of the court below is reversed and the cause remanded, with leave to amend the pleas.
Judgment reversed.