6 Or. 82 | Or. | 1876
The circuit court having rendered judgment in favor of the plaintiff upon the pleadings, notwithstanding the verdict qf the jury for the defendants, the correctness of the judgment can only be ascertained and determined from the state of the pleadings.
On looking into the pleadings we find that it is alleged in the complaint that defendants executed a “bond undertaking or writing obligatory,” to the effect that said Shaeffer should be and appear at the trial in a certain civil action then pending in a certain justice’s court between the plaintiff and said Shaeffer, and that said Shaeffer Avould pay any judgment that might be recovered against him in said action, and that in case said Shaeffer should fail so to do, the defendants Avould pay the amount of Avhatever judgment should be recovered by plaintiff against said Shaeffer in said action.
And it is further alleged that said plaintiff did recover a judgment against said Shaeffer for seventy-nine dollars, and twenty-one dollars and fifteen cents cost, which judgment said Shaeffer has wholly neglected and failed to pay. None of these allegations of the complaint having been denied in the ansAver of the defendants, they must all be treated as confessed under the rules of pleading adopted by our code. The defendants undertook to plead by way of avoidance that before they had become liable on their said undertaking, they had delivered into the hands of the constable for said precinct a copy of said undertaking, certified to by the
If the undertaking had been simply a statutory undertaking, this defense would have been available, but it is not. The code provides in such cases that ‘ ‘ the defendants may give bail by causing a written undertaking to be executed in favor of the plaintiff to the effect that defendant shall at all times, render himself amenable to the process of the court during the pendency of the action, and to such as may be issued to enforce the judgment of the court.” (Civil Code, sec. 109.)
Thus it will be seen by the section just cited that there was no law requiring that the undertaking should contain any agreement on the part of defendants to pay the plaintiff whatever judgment he might recover against said Shaeffer in said action. Hence it is insisted by counsel on behalf of defendants that that part of the obligation should be disregarded and treated as void, for the want of any consideration- to support it.'
Neither the undertaking nor a copy thereof appears in the record; but it is alleged in the complaint to be a bond or writing obligatory, and this allegation not having been denied in the answer, must be treated as true.
A bond or writing obligatory implies an instrument under seal, and in that class of instruments a consideration is always implied in law. So far as the record discloses, this bond or writing obligatory was voluntarily executed by defendants, and we see no sound reason why it should not be treated as good at common law, and be enforced as such between the parties. (12 Iowa, 573; Barnes v. Webster, 16 Mo. 258; 5 Mass. 314; 23 Iowa, 21; 16 B. Monroe, 556.)
If the bond was executed without consideration or obtained by fraud or mistake, the defendants should have so pleaded in their answer. We are not aware of any law, either statutory or common, which prohibits one party from agreeing in writing to pay the debt of another, nor is such an agreement contrary to public policy. Such contracts are directly authorized by the statute. (Civil Code, sec.
There being no error in the record, the judgment of the court below is affirmed.
