1 Mont. 584 | Mont. | 1872
This cause comes to this court on appeal from the third judicial district. The record presents the following facts : Lomme commenced an action to recover a debt against B. C. and Charles S. Kintzing for the sum of $4,884.89, and interest thereon. As auxiliary to this action for the purpose of securing any judgment he might obtain therein, he procured the issuance of a writ of attachment which the sheriff, W. K. Roberts,- levied upon certain property as belonging to the Kintzings. Afterward, W. S. WaL son brought an action of replevin against Roberts and came into possession of this property. In this action John M. Sweeney and Anton M. Holter entered into an undertaking in the sum of $5,000 to Roberts, conditioned that the said Watson should return the said property to him if a return should be adjudged, and that he would pay any sum of money as might for any cause in said action be recovered against him.
In the case of Lomme against the Kintzings, Lomme recovered a judgment for the sum of $4,954.93, and $552.50 costs. In the action of Watson' against Roberts, Roberts recovered judgment against Watson. The verdict of the jury in that case was as follows: “We, the jury in the above-entitled cause, find for defendant.” Upon this verdict the court adjudged that the defendant, Roberts, was entitled to a return of the property. No demand was made of Watson for a return of said property on behalf of Roberts; nor was there any writ issued by the court for the purpose of taking possession thereof and returning it to Roberts. There was no assignment of the undertaking executed by Sweeney and Holter to Lomme. The same was delivered to him, however, by Roberts, and he brings this action in his individual name. It may be proper to remark that the bill of exceptions in this case is presented to the court in an imperfect condition, and not as prescribed by law. The record does not clearly point out the alleged errors of which the appellant complains.
As the respondents, however, make no objection to the record, we will consider the imperfections as waived.
Lomme had, perhaps, no estate in these goods, but Roberts was exercising a power over them for his benefit, and hence was his trustee. A trustee can maintain an action for any damage to property he may hold in trust, and the amount of damages he may recover will be commensurate with the damages done to his cestui que trust and to his individual interest. At law the trustee is considered as holding all the title or interest of his cestui que trust. A stranger would not be allowed to set up an outstanding equity of a cestui que trust for the purpose of lessening a trustee’s damages to the property he holds. The undertaking was then given to secure all damages which Roberts might sustain by a failure to return the goods to him, should the court so adjudge, whether those damages should accrue to him in his individual or representative capacity. Lomme had a right to have these goods in Robert’s hands in order that they might be taken under execution to be sold to satisfy any judgment he might obtain against the Kintz
The utmost extent of signification is to be attributed to this term “trustee of an express trust.” 1 Whit. Pr. 63.
The case of a trustee of an express trust is an exception to the rule, that every action must be prosecuted in the name of the real party in interest.
“The fact, however, that the trustee of an express trust might bring an action in his own name does not, in most instances, preclude the beneficiary or real party in interest from likewise bringing suit in his name, and the instance of a party for whose benefit a contract was made is a case in which this may be done.” See 1 Whit. Pr. 64; The Camden Bank v. Rogers, 4 How. 63; Lane v. The Columbus Insurance Co., 2 C. R. 65; Baker v. Bartol, 7 Cal. 557; Taaffe v. Rosenthal, id. 534.
For these reasons we consider Lomme a proper party plaintiff.
The second question presented is, the liability of the defendants under the judgment entered in favor of Roberts and against Watson. It is claimed that because Roberts obtained against Watson no alternative judgment for the value of the property in case a return could not be had, that these defendants are not liable on their undertaking. That they made themselves liable on their un dertaking only to make good such judgment as Roberts might lawfully obtain
An irregular judgment will support an execution and may be enforced. Rawley v. Howard, 23 Cal. 401.
It is not true, however, that the law in regard to the judgment which a party may recover, in an action of replevin, enters into and forms a part of the contract which sureties enter into in an undertaking in such an action, so as to vary the same. Sureties in such an undertaking are bound by the contract they sign. Their liability cannot be extended or made less by any such statute. The conditions of such an undertaking are prescribed by law. It is not claimed that the undertaking sued upon is not in all particulars in conformity to the statute. This is what the defendants undertook for Watson:
“ For the prosecution of such action, for the return of the said property, if return thereof be adjudged, and for the payment to the said defendant of such sums as may from any cause be recovered against the said plaintiff.”
This is not an alternative undertaking. The defendants did not contract in this undertaking that Watson should return the property if the same should be adjudged, or they would pay the value thereof. They contracted both that Watson should return the property if it should be so adjudged, and pay any judgment the defendant in that action might recover for any cause for money against him. If the plaintiff in that action failed to perform any one of the things the sureties had undertaken that he should, the sureties became liable on their undertaking to the extent of the damages suffered for such cause. A judgment for the return of the property was awarded, and the property not returned.
‘ ‘ If we were called upon to construe the sections as an original question, unaffected by any prior decision upon the same point, we might be disposed to hold the complaint sufficient in this respect. Such was our impression upon the argument, but upon a careful examination of the decisions of the supreme court referred to in the argument, we find that the point has been determined the other way.”
The point in that case was raised by demurrer, alleging that the complaint did not state facts sufficient to constitute a cause of action, for the reason that the complaint did not show a judgment in the alternative either for a return of the property or its value.
This language has the effect to destroy certainly the authority of the case of Nickerson v. Chatterton to a considerable extent. That court, after a mature consideration, evidently does not approve of the principle laid down in that case, and are forced to approve of it for different reasons. In direct opposition to the case of Nickerson v. Chatterton, is that of Whitney et al. v. Lehmer et al., 26 Ind. 504. The principle upon which this case is decided is evidently that the practice in an action of replevin, as to the verdict and judgment that may be entered therein, does not affect the liability of the sureties in an undertaking in that action. That their liability is fixed by their undertaking and for a breach of it those entering into the same were liable.
The case of Gallarati v. Orser, 27 N. Y. 324, it is claimed, announces a rule in accordance with that of Nickerson v. Chatterton, and adverse to that expressed by this court.
The judgment considered in that case was for the value of the property only, and for that reason it was held that the sureties liable on an undertaking in arrest were not held. We are not prepared to say that this ruling was not correct.
The defendants in this action, however, insist that our statutes upon the subject of the recovery of personal property were borrowed from California, and that we are bound by the construction put upon them by the courts of that State. The statutes in question substantially existed in a great many States of this Union besides California at the time our legislative assembly adopted it. California borrowed it from New York. The correct appellation for our
If that judgment was erroneous it cannot be attacked in this action. It is not a void judgment, and hence cannot be reviewed in a collateral action. In relation to the right to the possession of the property, that was considered and decided in the action between Watson and Roberts. If C. S. Kintzing had become a bankrupt, his assignee in bankruptcy might be entitled to the possession of the property, but that is no reason why Watson should be entitled to take the property from Roberts and hold the same. He claimed the right to the possession through the_ Kintzings himself, and not under 0. S. Kintzing’s assignee. We hold that the sureties on the replevin undertaking had no right to introduce evidence in this action of the interest of the Kintzings in the property replevied. The answer denies that the Kintzings had any interest in property that was the subject of the attachment, but there is no regular allegation of ownership in any one else. There is no plea of this kind set up by way of defense such as would be required in order to entitle the defendant to prove the same.
Again, where the question of who is the actual owner of property is in dispute, we do not think that the defendants in an action on an undertaking in replevin can set up title in a stranger, and in that action compel the plaintiff to litigate his title to the property, upon which there had been a determination between the plaintiff and the principal, for whom the sureties became liable.
It was not necessary for the plaintiff to have a writ retorno Jiabendo issued and returned unsatisfied before he could bring this action. The sureties undertook that Watson should return the property if a return thereof should be adjudged. A return was adjudged and Watson failed to return the property. This was a breach of the undertaking. The case of Nickerson v. Chatterton decides that no writ retorno Jiabendo was necessary in order to fix liability of the sureties, and that case may be considered as very favorable to sureties.
It is claimed by appellants that if plaintiff is entitled to recover he is only entitled to recover damages to the amount of the value of the property as specified in the complaint of Watson in his action of replevin. In a complaint in an action of replevin the plaintiff states the facts which entitle him to a judgment. If he wishes a judgment for the value of the property in case the possession of the same is not delivered to him, he must allege its value. This is the basis of his right to recover such a judgment, but to hold that because the defendant, in an action of replevin, does not, in his answer, not only confess the value of the property which the plaintiff has fixed upon it, but allege that it is of much greater value, that he is bound by this allegation of the plaintiff, and cannot prove the actual value of the property taken in an action on the undertaking, would be imposing upon him great hardship surely. It is doubtful if the defendant in an action of replevin could base his right to a judgment for the value of the property, without alleging
In no case can the allegations of the complaint be a basis to warrant the affirmative relief prayed for by the defendant. Of course, where the allegations of the complaint have been denied by. the answer, and the plaintiff fails to make out his case, the judgment of the court would be for a return of the property.
There are cases to the effect, that where the court awards a judgment of nonsuit the defendant is not entitled to an alternative judgment for the value of the property. If the rule, however, contended for was the correct one, why the value of the property alleged in the complaint would not be a basis for an alternative judgment, we are unable to perceive where a nonsuit was adjudged. It was not necessary that the plaintiff should have made any demand for a return of the property. The only object of making a demand is to notify the party in possession of the property of the rights and claim of the person entitled to the property. Of this the principal and his sureties had ample notice in the action of replevin. The plaintiff in that action set up his rights, and claimed a return of the property, and judgment of return was awarded him, and that certainly was sufficient notice.
For these reasons the judgment of the court is affirmed.
Judgment affirmed.