Mulford v. Estudillo, 17 Cal. 618

Mulford v. Estudillo

17 Cal. 618 | Cal. | 1861

Baldwin, J. delivered the opinion of the Court

Field, C. J. concurring.

A demurrer was sustained to the complaint in this case, and the appeal is from the judgment sustaining it.

The complaint counts upon a bond of indemnity executed by the defendants to the plaintiff, for breach of which this action is brought. A synopsis of the complaint will show the point made and passed on below, and which we here decide on appeal. The bond recites, that defendants had, by deed of same date, entered into agreement with divers persons, then occupying parts of Rancho San Leandro, respecting the rancho, to adjust difficulties; and that there is an appeal from the Circuit to the Supreme Court, in Clement Boyreau v. Campbell, the parties to said agreement being parties defendant to said suit, then defendants covenant with said parties to said agreement at all times to indemnify them and their sureties on the appeal bond in said case, against all damages, from any judgment, for any costs, or damages recovered, or to be recovered thereon, and that any judgment of possession thereon shall be carried out in accordance with said cotemporaneous agreement, so far as the parties thereto are concerned, the intention being that neither said parties nor their sureties shall be called on to pay costs or damages in the said suit, nor to be molested by any judgment therein; that plaintiff was one of the parties to said agreement, and occupied a portion of said rancho ; shows that by appeal bond is meant the writ of error bond; that judgment has been rendered in favor of Boyreau for possession and costs; that a writ of error had been given, signed by plaintiff and others, as principals, and by Bray and others as *622sureties, in usual form; the affirmance of the judgment, with costs, remittitur, amount of costs, §1,636.06 ; and writ of error, not prosecuted with effect, whereby the parties became liable to pay the costs of Boyreau, and being so liable, and the bond in full force, Bray, one of the sureties, paid to Boyreau the costs, for which Boyreau had caused execution to issue, whereby an action had ac-. crued to Bray, to recover of any of said principals; that he sued said plaintiff as one of the principals, and recovered the amount, which plaintiff paid to said Bray, identifies the suit referred to, in the instrument sued on, with the said suit of Boyreau v. Campbell, that the defendants have not kept their covenant with plaintiff, but have broken the same in this; said Bray was called on to pay, and did pay the costs recovered in said action, and that plaintiff has been called on as aforesaid, and paid and reimbursed said Bray, all of which defendants had notice; damages to amount of costs, and prayer for judgment therefor.

The error of the respondent is, in supposing that this complaint, reciting the bond, shows upon its face a want of consideration for the bond. The instrument, being under seal, imports a consideration, if there be nothing in its térms which negatives this conclusion. This we have held in several cases. Now, the mere fact that the bond recites "that an agreement had been made, as therein recited, does not show, or tend to show, that this bond was induced by a past and executed consideration. It is perfectly consistent with this recital to suppose that the obligors executed the bond on good consideration. If it had recited, that in consideration alone of a past fact or act with which the obligors were not connected, as the existing indebtedness of A to B, 0 promises to pay so much money, it might be contended that this promise, sealed or unsealed, was nudum factum, for it would ignore any other or new consideration for the last promise. But this is not the case. The instrument here recites that a certain agreement had already been made, but it does not make the promise to indemnify at all dependent on that fact; nor is the first agreement set out. It may very well be, for all that appears, that by that agreement this contract was stipulated for, or that it created some obligation to execute it, or to do the acts stipulated by the last bond. But it is enough to say *623that prima facie the bond is binding, and imports a consideration, and, on demurrer, the paper itself, as set out, must show a want of consideration. This the instrument in question does not show, and therefore the demurrer was improperly sustained.Judgment reversed and cause remanded.