Ripley v. Gear

58 Iowa 460 | Iowa | 1882

Rothrock, J.

1. BOND: mistake in: liability of surety. The bond in question was conditioned as follows: “The condition of this obligation is such,'that, 'wl161’638 fhe said I- R- Ripley, as aforesaid, has V virtue of a certain writ of attachment issued from the office of the clerk of the Circuit Court of Des Moines county, Iowa, in a suit therein pending, wjierein I. N. Ripley is plaintiff, and James McCaw is defendant, levied upon and attached the personal property hereinafter described as the property of the said, James McOaw. Now, if the said obligors shall and will deliver to the said "William Schaffner, sheriff, or his successors in office, whenever the same may be called for, the following described personal property, to-wit: £ One soda fountain * * then this obligation to be void * * * . ”

It will be observed that the bond recites that the attachment was from, and the suit was pending in, the Circuit Court. The contention of counsel for appellants is, that they have the right to stand by the very letter of the bond, and that as no suit was pending in the Circuit Court, the bond is void. In our opinion this view of the obligation of the sureties is not well taken. This bond was given to release an'attachment. The statute provides for a re-delivery to the officer from whose custody the property is taken. Code, § 2996. The sureties ought not to be allowed to effect a release of the property, and then excuse themselves upon the ground that the action was pending in a different court from that which their bond recites. The language of the bond is their language, and it is immaterial in what court the action was pending. They gave the bond to effect a specific purpose, which was to discharge-the attached property. If they mistook the court in which the action was pending, the plaintiff should not be prejudiced by reason of such mistake.

Eeference is made in argument by counsel for appellants to a number of authorities, which in substance holds the familiar doctrine that the liability of sureties is limited to the strict terms of their obligation, and that there can be no liability against them by implication. But in the case at bar the mistake does not affect their liability; it is a mere mistaken recital in a matter wholly immaterial to the obligation which the sureties took upon themselves.

Affirmed.