Lewis v. McNary, 62 P. 897

Lewis v. McNary

62 P. 897 | Or. | 1900

Mr. Chief Justice Bean

delivered the opinion.

This is an action brought by Lewis & Mills against H. P. McNary and others on a redelivery bond to recover the difference in the market value of the property in dispute at the time of its delivery to> the defendants under the bond and its return to the plaintiffs at the termination of the litigation, *117and also for divers and sundry items of damages the plaintiffs assert they have sustained by reason of its detention. A demurrer to the complaint was sustained, and a judgment rendered in favor of the defendants, and the plaintiffs appeal. The material facts alleged are as follows: The defendant McNary and the Southern Pacific Company were joint defendants in an action brought by the plaintiffs to recover the possession of two certain lots of hops stored by McNary with the railroad company. The sheriff took possession of the hops under plaintiffs’ order, but, before delivery to them, McNary, in order to obtain a return thereof, gave the sheriff a written undertaking, as provided in Section 137 of Hill’s Ann. Laws, in double the value of the property, with the defendants Gray as sureties, conditioned that “said defendant shall redeliver said property to the above-named plaintiffs if delivery thereof be adjudged, and shall pay to said plaintiffs such sum as may for any cause be recovered against the defendant.” It is alleged that the possession of the property was thereupon redelivered to McNary, but it is subsequently averted in the complaint that the Southern Pacific Company, after an unsuccessful application to have the replevin action dismissed as to it, on the ground that it had no interest in or claim to the hops except for storage, and was simply holding the possession thereof at the instance of McNary, filed a bill in equity in the nature of a bill of interpleader against the plaintiffs and McNary, alleging that it was in the possession of the property as a warehouse keeper; that there was a controversy between them respecting the ownership and right of possession ; and asking that it be exonerated from any further liability upon delivering a proper warehouse receipt to the clerk of the court for whoever might be adjudged to be the owner of the hops. Both the plaintiffs and McNary answered the bill, and, after trial upon the pleadings and proof, it was decreed that the plaintiffs were the owners and en*118titled to the possession of the property, but no judgment was rendered against McNary for damages. The hops, which in the meantime had very much depreciated in value, were thereupon delivered to the plaintiffs.

Although the complaint alleges that the sheriff took possession of the property under the plaintiffs’ order, and delivered it to McNary upon the execution and delivery of the undertaking on which this action was brought, yet it is quite apparent from the other allegations of the complaint that from the time the hops were stored with the railroad company by McNary they remained in the actual possession of the company as a warehouse keeper until the final termination of the suit, and were then delivered to the plaintiffs. It would seem, therefore, that McNary at no time obtained possession of the property under the redélivery bond, and that it never in fact accomplished its purpose. But, waiving this point, and assuming that the bond is a binding obligation, and that the decree was equivalent to a judgment in the action for possession of the hops, the demurrer to^ the complaint in this action was nevertheless properly sustained, because it appears affirmatively that there has been no breach of the bond. Its condition's are: (i) That McNary shall redeliver the property to the plaintiffs if a redelivery be adjudged, and (2) that he shall pay to them such sum of money as may for any cause be recovered against him. The property was promptly delivered to the plaintiffs as soon as it was decreed that they were entitled thereto ; hence, the first condition of the bond was complied with. No sum whatever has been recovered against McNary on account of the redelivery of the property, and so there has been no breach of the latter clause in the bond. What is the true measure of damages in an action on an undertaking given in an action for possession of personal property, where there has been a breach thereof, and whether a recovery of damages can be had at all unless assessed in the original action, *119are controverted questions: 2 Sutherland, Dam. (2 ed.), §§ 501, 502; Whitney v. Lehmer, 26 Ind. 503; Washington Ice Co. v. Webster, 125 U. S. 426 (8 Sup. Ct. 947, 31 L. Ed. 799). But the question of damages cannot arise until there is a breach of some condition of the bond which gives a right of action thereon. If, in this case, the property had not been returned to the plaintiffs, or if it had been returned in a damaged condition (as in Yelton v. Stinkard, 85 Ind. 190), and for either reason an action had been brought on the bond, the questions sought to be litigated herein might be pertinent. There was no breach of the bond, however; therefore no action can be had thereon: Thomas v. Irwin, 90 Ind. 557. The bond was not intended as a complete indemnity to the plaintiffs for all damages they might sustain by reason of the redelivery of the property, but was limited to such sum as might be adjudged against the principal of the bond. Before there is a breach of this condition, there must be a recovery against the principal, and a failure by him to pay. Whether such recovery should be in the original action is immaterial at this time, for there can be no action on the bond until there is a breach, and there is no breach in this respect until the defendant fails to pay a sum recovered against him. It is elementary that a surety cannot be held for what he did not undertake to perform, and no action can be maintained against him until there is a breach of his contract. The judgment of the court below is therefore affirmed. Affirmed.