Palmer v. Vance

13 Cal. 553 | Cal. | 1859

Terry, C. J. delivered the opinion of the Court—

Baldwin, J. concurring.

This is an action upon a bond given to release property attached.

It appears that suit was instituted by Crosby & Dibblee against Ladd & Richardson, for the sum of two thousand nine hundred and seventy-six dollars and eight cents, and an attachment issued which was levied on property of the debtors, sufficient to satisfy the debt.

In order to procure the release of the property attached, the defendants executed the obligation sued on, by which they undertook to pay on demand to the plaintiffs in the action the amount of the judgment and costs, not to exceed three thousand dollars, which plaintiffs might recover in such action ; which is, by mistake, described in the undertaking as a suit to recover one thousand six hundred and seventy-six dollars and eight cents.

Upon the execution and delivery of the bond, the property attached was returned to the attachment debtor. Judgment was recovered in the action for an amount greater than the penalty of the bond, and this action is instituted by plaintiff, to whom the bond was assigned, to recover the amount of the penalty.

Judgment was rendered below for the plaintiff, and defendant, Yance, appealed.

We are not able to discover any error in the record. The paper sued on is not a statutory undertaking, but being founded upon a sufficient consideration, is valid as a common law obligation for the payment of money. A bond taken by the Sheriff is not void for want of conformity to the requirements of the statute, which, while prescribing one form of action, does not prohibit others; and a bond given voluntarily upon the delivery of property, is valid at common law. (Whitsett v. Womack, 8 Ala. 466.)

There was no error in permitting the mistake in the recital of the bond—as to the amount for which the attachment issued—to be explained and corrected by parol evidence.

In Pierce v. Parker, (4 Met. 84,) the Court say :

“ It is a well settled principle of law, that where an instrument which is offered to prove the subject matter described differs in one or more particulars from the thing described, evidence is admissible to show their agreement or identity, notwithstanding such misdescription.”

(See, also, 18 Barb. 201; 2 Parsons on Con. 67, 76.)

In the case of Meredith v. O’Neale, (10 Ala. 828,) the recital of the bond sued on was erroneous, both as to the amount of the execution and the names of the parties. Yet it was held that these errors might be explained by parol evidence. The Court said : “ It is supposed, however, there is a variance between the obligation and the legal proceedings, which is incapable of aid from parol proof, and which prevents it from having any effect. The supposed variance is the omission of the names of some of the defendants, in the recital of the execution, and the omission, to conform to the terms named in the condition with it. Although these were sufficient to destroy the effect of the bond, as a strict compliance with the statute, they do not render it invalid. It is a strained and forced conclusion to say that, because the execution issued against Lunsford, it will be concluded that it issued against him alone. This might be correct as a prima facie intendment, but certainly is open to explanation. If we look to the contract evidenced by the bond, it will be seen the description of the execution is no part of it. The levy, and the redelivery of the cotton to the debtor, is the consideration, or inducement, for him and his sureties to undertake it shall be forthcoming at a particular time and place. The sum due on the execution is of no sort of importance, except for the purpose of ascertaining the damage which may flow from a breach of the condition. It would be a monstrous absurdity, that engagements of the most solemn nature might be avoided because of the misrecital of the facts, or circumstances, which induced them. It is a general proposition, that meets us everywhere, that the consideration, even when set out in a deed, may be explained by parol evidence. (Cowen & Hill’s Notos, 1441.) Hor are decisions lacking on the precise point we are now considering. In Hewlett v. Chamberlayne, (1 Wash. 367,) the forthcoming bond omitted entirely to set out the amount of the execution, yet the Court held this to be no objection in an action of debt, although a motion for a summary judgment had been refused, because of the non-conformity of the bond to the execution. In Stockton v. Turner, (7 J. J. M. 192,) an injunction bond recited the judgment enjoined, as for two hundred and eighty dollars and fifty cents, when the true sum was two hundred and eighty-eight dollars and fifty cents, yet the Court sustained the bond, on the ground of an estoppel. It is said the recital of a particular fact in the condition of the bond, will estop the obligor from denying it. (Willes, 9.)

On the other hand, when the recitals do not constitute a part of the contract, it is said by Chief Justice Kent to be a settled rule that even a mistake in the recital of a bond does not vitiate it, for it is no essential part of the bond. (Talmadge v. Richmond, 9 John. 85. See, also, St. John v. Dagges, Hob. 130 ; Coke Litt. 352, b; Wessinger v. Crook, 7 Ala. 710.) In accordance with these principles, a bail-bond was held to be good, although the Christian names of both the plaintiffs were misstated in the bond, (Colburn v. Downs, 10 Mass. 21,) and a bastardy bond was sustained when the condition was to answer a complaint made in 1816, instead of 1833, when it was really made. (18 Pick. 257.)”

There is no force in the objection that execution is not shown to have issued against the judgment debtors. The undertaking of the defendants is not that the attachment debtor should pay the judgment, but a distinct and positive agreement that these defendants would pay the amount on demand. This agreement is shown to have been supported by a sufficient consideration, and there is no reason why they should not be held to a strict compliance with its terms.

Judgment affirmed.