Foster v. Passerieux

37 Pa. Super. 307 | Pa. Super. Ct. | 1908

Opinion by

Porter, J.,

This is an appeal by the plaintiff from an order of the court below staying an execution, upon the ground that the full amount of the.judgment, upon which it issued, had been collected from the defendant, August Valentour, upon previous executions on the same judgment. John Passerieux and August Valentour, on March 3, 1894, executed and delivered to a trustee for Margaret Passerieux, the wife of John, a bond in the penal sum of $500, with warrant of attorney to confess judgment for said sum with five per cent attorney’s fees for collection. The bond recited an agreement ■ between John Passerieux and Margaret, his wife, “whereby they shall and will live separate and apart from each other, on the payment to said Margaret Passerieux by the said John Passerieux of the sum of thirty dollars on the signing of the within bond and the sum of ten dollars per each calendar month thereafter, beginning April 2, 1894, for the support and maintenance of the said Margaret Passerieux, so long as she shall live;” and the condition of the bond is to the same effect, that John Passerieux shall and do well and truly pay to Margaret Passerieux, her trustee, or anyone appointed by her, “the sum of thirty dollars on the signing of this obligation and the sum of ten dollars on the first day of each and every calendar month thereafter, commencing April 2, 1894, .... so long as the said Margaret Passerieux shall live .... then this obligation to be void and of none effect, otherwise to be and remain in full force and virtue.” The appellant contends that, judgment having been entered under the warrant of attorney contained in the bond, in the sum of $525, the amount of the penalty and attorney’s commissions thereon, this' judgment merely stood as security for the collection of the installments as they became due; that when executions were issued on this judgment they wére issued not for the collection of the penalty, but for the monthly installments due on the agreement of Passerieux to pay, and that upon this ground he can continue to collect from Yalentour, by successive executions, as long as the appellant lives. The question, therefore, is: Can Valentour be held legally liable on this bond for an amount in excess of the penalty?

“There is a difference between covenants in general and covenants secured by a penalty or forfeiture. In the latter case the obligee has his election. He may either bring an action of debt for the penalty and recover the penalty (after which recovery of the penalty he cannot resort to the covenant, because the penalty is to be a satisfaction of the whole), or if he does not choose to go for the penalty, he may proceed upon the covenant and recover more or less than the penalty toties quoties.” This language of Lord Mansfield, used in Lowe v. Peers, 4 Burr. 2225, is quoted with approbation in New Holland Turnpike Co. v. Lancaster County, 71 Pa. 442, by Justice Sharswood. The Turnpike Co. v. Lancaster County, was an action of covenant, and the bond set forth in full the covenants- of the defendant, and it was held that in an action upon the covenants there might be a recovery in excess of the amount of the penalty named in the bond. Where there is a contract for the performance of certain, things and the party binds himself in a penalty, for the performance, the party complaining of the breach of such contract has his election either to bring debt for the penalty or case for the breach of contract, and in the latter case may recover even beyond the amount of the penalty in damages: Dick v. Gaskill, 2 Wharton, 184. And so where an individual gives his bond in a penalty, conditioned upon his paying a debt in a smaller amount, at a fixed time, with interest, and judgment is not recovered upon the bond until the amount of the debt and interest exceeds the penalty, there may be a recovery in excess of the penalty: Hughes v. Hughes, 54 Pa. 240. In all of these cases the action was brought for the debt, or directly upon the contract to pay, and not for the recovery of the penalty.

The defendant, Valentour, the appellee, had entered into no contract which required him to make the monthly payments to the wife of Passerieux; the recital of the agreement between the parties in the bond contains no suggestion of any such engagement upon his part, nor was any action or payment by him required to satisfy the condition of the bond. The contract, as recited, and the condition of the bond required that Passerieux alone should pay. All that Valentour undertook to do was to be liable for the penalty, in case Passerieux did not pay according to the condition of the bond. While Passerieux made the monthly payments, there was no breach of the condition. After the breach Valentour could discharge himself only by the payment of the penalty: Silverthorn v. Hollister, 87 Pa. 431.

• Judgment in this case was entered under the warrant of attorney contained in the bond, that it was entered for the penalty and the attorney’s commissions thereon would seem to be too clear to require extended argument. The warrant of attorney did not authorize the entry of a judgment for anything but the penalty and attorney’s commissions, and the bond within which the warrant was embodied did not bind Yalentour for anything beyond that amount. The entry'of the judgment, on October 10, 1902, exhausted the warrant and no second judgment could subsequently lawfully be entered under it. The attempt of the attorney of the plaintiff, on October 11, 1902, to inflate the judgment by filing a prtecipe with the prothonotary was a failure. When, in 1902, Valentour attacked the judgment all the parties had a full opportunity to be heard, and the decree of January 25, 1904, was a judicial determination that the judgment was entered for the penalty, and attorney’s commissions thereon, amounting to $525. This was a final decree, and if plaintiff was not satisfied an appeal ought to have been taken within the time prescribed by the statute. When executions were from time to time issued on this judgment they were issued to enforce the liability for the penalty. They could not have legally issued, on this judgment, to collect anything but the penalty. Valentour has paid on such executions the amount for which he was liable, with interest and costs, and his liability is discharged. The learned judge of the court below fell into no error when he stayed this writ.

The order of the court below is affirmed, and the appeal dismissed at cost of appellant.