Van Zandt Jacobs & Co. v. Steiber

97 A. 763 | Conn. | 1916

This record presents but one question. Although the plaintiff's demurrer to the answer, which was sustained below, states several reasons of demurrer, they all gather about the general question whether, upon the facts stated in the pleadings, all of which stand admitted, the plaintiff is entitled to recover against the defendant as surety upon the bond in suit.

In Schunack v. Art Metal Novelty Co., 84 Conn. 331,80 A. 290, a bond substantially identical with that here sued upon and given under similar conditions was before this court. It was there held that the bond, although given to secure the release of property from an attachment, was not one which in legal contemplation stood in the place of the attachment lien, partaking in a sense of its quality, but one which furnished to the attaching creditor in substitution for the attachment lien a new security entirely disconnected with the lien and as fully independent of it as though there never had been an attachment. As logical corollaries of this proposition we held that the obligation it created was in no respect dependent upon the possible fate of the attachment lien, had it not been supplanted by the bond, that bankruptcy proceedings which would have invalidated the attachment had no effect upon it, and that in spite of such proceedings the surety thereon continued to be holden to the obligation according to its terms.

These conclusions, the reasons for which need not be repeated, are decisive of this case. The defendant, as surety on the bond in suit, became bound to the plaintiff in the penal sum of $400, conditioned that the principal, being the defendant in the action brought by the plaintiff, should pay any judgment that might be rendered in such action not exceeding the amount of $350. The obligation thus assumed was and still is one measured by its terms and unaffected by the subsequent bankruptcy of the judgment debtor.

In Schunack v. Art Metal Novelty Co., 84 Conn. 331,80 A. 290, the plaintiff, in the prosecution of his original action in which the attachment had been made, was attempting to obtain a judgment against the defendant who, in his bankruptcy proceedings, had obtained a discharge. He sought this judgment in order that he might establish a breach of the condition of the bond. The surety had bound itself only upon condition that a judgment rendered was not satisfied by the judgment debtor. Without such judgment the plaintiff was powerless to avail himself of the bond, and could not look to the surety. With the judgment his right of action would, as we then held, be complete. Here the judgment in the original action has been rendered. We have no occasion to inquire into the property, either legal or as an act of discretion, of its rendition, as the defendant invites us to do. It is in existence, and has not been satisfied. The defendant, by his execution of the bond, assumed the undertaking, still in force, that it be satisfied.

There is no error.

In this opinion the other judges concurred.