44 Mo. App. 571 | Mo. Ct. App. | 1891
Lead Opinion
This action is on a bond in the sum of $5,000, with the following condition : ‘ ‘ The condition of the [above obligation is'such that, whereas the above-bounded John J. Hoos is indebted to said Charles R. Hicks in the sum of $6,000, borrowed money, and has executed notes evidencing said indebtedness, secured by deeds of trust of even date herewith and duly recorded. Now, if the said John J. Hoos shall well and truly keep each and every part of the promises on his part hereinafter made, then this obligation to be void ; otherwise of full force and effect. It is agreed that the sum of money last above named shall be used in the erection of four dwelling-house buildings on lots 32 and 71, Carlton Place in Kansas City, Missouri, so that the actual cost of the construction of said buildings shall be $6,000. And it is further agreed that the said buildings shall be completed on or before the fifteenth day of September, 1888, and, when completed, shall be wholly paid for by said John J. Hoos, leaving no lien of any sort against it or the land on which it shall stand, or any claim for labor or material or otherwise that might be made a lien against the buildings or land prior or superior to the lien of the deeds of trust mentioned in this bond.” The answer was a general denial verified by affidavit. There was a judgment for the penalty in the bond, and an assessment of damages at $1,000, for which latter sum plaintiff was to have execution. Defendants appeal to this court.
We notice a recent decision of the supreme court, State ex rel. Harber v. Wear, 101 Mo. 414, wherein it is held, in an opinion by Judge Black, that under the provisions of the statute, relating to stenographers in counties of less than forty-five thousand inhabitants, parties appealing are not confined to the work of the stenographer; that they can yet make up their bill of exceptions in the old way, from notes' or memory. The two acts are quite different, but whether the ruling in State ex rel. Harber v. Wear, supra, would nevertheless apply to both statutes, we need not say, and do not decide. For as before seen we have no certificate of the clerk which includes an authentication of the bill, and the paper with the trial judge’s name attached at the bottom thereof stands before us uncertified and unauthenticated.
It is not necessary to consider at this time what remedy defendant may have to prevent a double payment of his debt, if it can be so called, nor is it necessary to say he has any remedy, since nothing of that nature was presented or asked in the trial court or here.
It follows the instructions given by the court were correct, and the judgment is affirmed.
Rehearing
ON MOTION FOR REHEARING.
A re-examination of the grounds of our opinion has resulted in a change of my conviction. I may shortly state the reasons for that change.
It may be conceded that it is well established by a current of decision that, if there be a covenant to indemnify simply, and no more, then the damage must be shown before the party indemnified is entitled to recover, but if there be an affirmative covenant to do a certain act, or to pay a certain sum or sums of money, then it is no defense to say the plaintiff has not been damnified, and the measure of damages in such case is the amount agreed to be paid or the proper expense of doing the act agreed to be done. Ham v. Hill, 29 Mo. 275; Gilbert v. Winan, 1 N. Y. 552; Willock v. Hoppock, 6 Wall. 94; Thomas v. Allen, Hill, 146; Port v. Jackson, 17 Johns. 239, 479; Mann v. Eckford’s Ex’rs, 15 Wend. 502; Ex parte Negrus, 7 Wend. 499; Lorsemore v. Radford, 9 Mees. & Wels. 657 ; Lathrop v. Atwood, 21 Conn. 117; Wilson v. Stilwell, 9 Ohio St. 467. How shall the contract in question be classified ? I think the plaintiff, by his pleading, has placed
But if a different view be taken as to the propriety of the action of the court in excluding the defendant’s offer of evidence, I would still be of the opinion that the judgment should not stand for another reason. If the judgment should be discharged by the sureties of Hoos, this will not in any way diminish his liability on the notes secured by the deeds of trust. The notes, one or more of which are held, it seems, by persons other than
If this is a case, as we have decided, where the bond sued on contains an independent covenant to do a specific thing, I think, even then, that we should reverse the judgment and remand the cause, with directions to the circuit court, to make the orders which I have indicated, to save the rights of the parties. Railroad v. Higgins, 89 Mo. 607; R. S., sec. 3776. I think the motion should be sustained.