214 P. 708 | Okla. | 1923
This action was commenced by the defendant in error, as plaintiff below, against the plaintiffs in error, defendants below, and Mrs. C.E. Ferrell, as administratrix of the estate of C.E. Ferrell, decreased, to recover on two bonds which had been executed by C.E. Ferrell, as principal, and the plaintiffs in error, as sureties. The parties will be hereinafter referred to as plaintiff and defendants, as they appeared in the lower court.
On the trial of the case, a demurrer was sustained to the evidence as to the defendant Mrs. C.E. Ferrell, administratrix of the estate of C.E. Ferrell, deceased, because a claim had not been presented to the administratrix within the time provided by law. The other defendants insisted that the discharge of the principal operated as a discharge of the sureties, and assigned as error the refusal of the trial court to enter judgment for them on that ground. We are of the opinion that the discharge of the principal by the rendition of judgment in favor of his estate because the claim was not presented within the time provided by law does not operate as a release of surety on attachment bond. The rule is stated in 21 Rawle C. L. sec. 107, as follows:
"While the rule is that the extinguishment of the direct engagement of the principal, no matter how accomplished, extinguishes the collateral liability of the surety, there are exceptions thereto. For instance, the discharge of the principal by an act of the law in which the creditor does not participate will not release the surety."
In Baker et al. v. Gaines Bros. Co.,
"The sureties are not released from liability upon a note made by a deceased principal by failure of the payee to file the claim against the estate of the deceased principal."
In Darby v. Berney National Bank (Ala.) 11 So. 881, the court said:
"The release of the principal debtor in this way by operation of law, which wrought the result through the mere passiveness of the creditor, did not discharge the surety."
The principle announced in the foregoing cases controls in the instant case. The fact that suit was brought against the administratrix and sureties and the demurrer was sustained to the evidence as to the administratrix does not change the situation, as the judgment was simply a judicial determination of the discharge of the principal, because of the failure to present the claim, and the rule announced in the above cases that a discharge by operation of law does not result in a discharge of the sureties is controlling here.
The defendant contends that the petition does not state a cause of action, relying principally upon the contention that the petition does not contain adequate allegations as to the special damages alleged to have been sustained. In Reliable Mut. Hail Ins. Co. v. Rogers,
"In a suit for wrongful attachment it was only necessary to allege that the attachment was wrongful and the resulting damages."
In Kennedy v. Van Horn,
The defendants further complain of the introduction of certain evidence which was admitted over their objection relative to the expense incurred in connection with the dissolution of the wrongful attachments. The general rule announced in this jurisdiction in Leasure v. Hughes, 72 Oklahoma,
"The defendant would be entitled to recover any reasonable and necessary expense incurred in procuring the dissolution of said attachments, including reasonable attorney's fees. * * *"
To authorize allowance of the amount expended by defendant in procuring the release of writs of attachments upon the property of the defendant, it must be shown by the proof not only that the services were reasonably necessary in procuring the release of the attachments, but also the reasonable nature of the services. In 17 C. J. 914, we find the following statement:
"The measure of the recovery for expenses incurred by plaintiff by reason of defendant's wrongful act is a reasonable sum therefore, and not the amount actually paid out, nor a sum in excess thereof. Hence, while evidence of the amount actually paid may be considered, the necessity of such payment and its reasonableness must be shown."
In the case at bar, the trial court permitted evidence to be introduced showing the amounts expended by the plaintiff in making numerous trips to Chandler and Tecumseh, and also the expense of numerous trips by his attorneys, but there was no evidence introduced showing the necessity for those trips or the reasonableness of the charges, neither was there any evidence introduced showing that it was reasonably necessary to employ attorneys living at Shawnee to handle the litigation, nor that the expenses by reason of that fact were necessary or reasonable. The only statement made by the plaintiff as to why attorneys were employed living at Shawnee and as to the necessity of his expenses in going to see the attorney at that place was, "Well, I had my reason." Proper exceptions were saved to the introduction of the evidence as to the various items of expense on the ground that there was no showing that the same was reasonably necessary or that the same was reasonable. and we are of the opinion that the court committed error in overruling objections to this testimony.
The judgment of the trial court is reversed, and cause remanded, with directions to grant a new trial.
JOHNSON, C. J., and KANE, McNEILL, KENNAMER, NICHOLSON, and BRANSON, JJ., concur.
