McDonald v. Loewen

Citation145 Mo. App. 49,130 S.W. 52
PartiesMcDONALD et al. v. LOEWEN et al.
Decision Date06 June 1910
CourtCourt of Appeal of Missouri (US)

Rev. St. 1899, § 419 (Ann. St. 1906, p. 506), providing for judgment on a forthcoming bond in attachment for the value of the property, and, if that value exceeds the amount due on execution, for the amount due and 20 per cent. damages, does not authorize judgment for interest on the value; the 20 per cent. provision being for a penalty.

4. ATTACHMENT (§ 353) — FORTHCOMING BOND — JUDGMENT — INTEREST.

Under Rev. St. 1899, § 471 (Ann. St. 1906, p. 559), providing that judgment for plaintiff in a suit on a bond with a collateral condition shall be for the penalty of the bond, on recovery on a forthcoming bond in attachment plaintiff would be entitled to interest only from commencement of the suit.

5. ATTACHMENT (§ 344) — FORTHCOMING BONDS — SUITS ON — PREREQUISITES.

Under Rev. St. 1899, § 419 (Ann. St. 1906, p. 506), entitling plaintiff in attachment to judgment on a forthcoming bond after issuance of execution, he cannot proceed against the obligors until return of the execution unsatisfied, nor until assignment of the bond to him.

6. ATTACHMENT (§ 191) — FORTHCOMING BONDS — PAYMENT OF PROCEEDS OF PROPERTY.

Third persons retaining attached property under a forthcoming bond could not legally pay the proceeds of the sale of the property over until settlement of the priorities of attaching creditors.

7. ATTACHMENT (§ 191) — FORTHCOMING BONDS — EFFECT.

The effect of a forthcoming bond in attachment is to release the sheriff from care of the property attached and to give possession pending suit subject to the court's orders.

8. ATTACHMENT (§ 188)"RECEIPTOR."

In attachment a "receiptor" is one to whom possession of the property is delivered as bailee for the sheriff until production is required by the court.

9. ATTACHMENT (§ 190) — RECEIPTS FOR PROPERTY — DAMAGES.

The measure of damages on a receipt for attached property to be held until production is required by the court is the value of the property and interest from the time of demand.

10. INTEREST (§ 1) — DEFINITION.

"Interest" is the legal damages for injurious detention of money due.

11. PRINCIPAL AND SURETY (§ 73) — LIABILITY ON — INTEREST.

Sureties are liable for interest on their obligations from the time demand is made upon them, and, when no demand is made, from the date of service of summons in suit on the bond.

12. INTEREST (§ 39) — COMPUTATION.

In the absence of special agreement as to interest or the time of its payment, it is payable on a debt from the time the principal is demanded.

13. ATTACHMENT (§ 338) — FORTHCOMING BONDS — LIABILITY FOR INTEREST.

Obligors on a forthcoming bond in attachment are liable for interest only after demand by the owner of the bond.

14. APPEAL AND ERROR (§ 1011) — FINDINGS — CONCLUSIVENESS.

A finding on conflicting evidence cannot be reviewed on appeal.

Appeal from St. Louis Circuit Court; O'Neill Ryan, Judge.

Action by Rufus L. McDonald and others against David Loewen and others. From the judgment, defendants appeal. Reversed and remanded, with directions.

Lee Sale and I. J. Ringolsky, for appellants. Robt. A. Holland, Jr., J. F. Woodson, and Rusk & Stringfellow, for respondents.

NIXON, P. J.

The question presented to this court for determination on this appeal is as to what amount of interest, if any, is allowable against appellants on a forth-coming bond under circumstances disclosed in this record.

Three separate attachment suits were commenced against Morris Lazarovic. The first writ was in favor of Schmitz & Schroder, copartners, the second in favor of Goldsmith, Rosenbush & Levi, copartners, and the third was in favor of R. L. McDonald & Co. All of said writs were directed to the sheriff of the city of St. Louis and were levied by him on the stock of clothing and furnishing goods of the defendant in said suits, Morris Lazarovic. At the time the attachments were levied, the said goods were in the possession of the appellants, David Loewen and Albert Loewen. The property was duly appraised at $3,474.50, and appellants were allowed to retain possession of the property upon executing a forthcoming bond in the sum of $6,949. This bond, after reciting the said attachments and their levy upon the goods of Morris Lazarovic, contained this provision: "Now, if the said David Loewen and Albert Loewen shall deliver said property, and every part thereof, unto the sheriff, or unto his successor or assigns aforesaid, when and where the court may direct and shall abide the judgment of the court, then this obligation shall be void." Soon after the execution of the forthcoming bond, the goods were sold by the appellants and hence could not afterwards be produced to abide the judgment of the court.

The claim of Schmitz & Schroder was to recover $2,140.25, and that of Goldsmith, Rosenbush & Levi was for $2,353.70. It will be seen that if both of these attachments had been sustained, and judgments for the amounts claimed thereunder obtained, there would have been nothing in the value of the goods to satisfy the claim of R. L. McDonald & Co. which was for $5,000. A contest therefore arose between the attaching creditors as to their priority. R. L. McDonald & Co. filed intervening petitions seeking to set aside the attachments of the other attaching creditors.

The attachments of the several creditors were levied in May, 1896. In the course of the litigation that followed, the court sustained the attachment of Schmitz & Schroder, holding that they were entitled to the first lien; that R. L. McDonald & Co. were entitled to the second lien; and that Goldsmith, Rosenbush & Levi were entitled to the third lien. The attachment of Schmitz & Schroder was sustained on November 30, 1900.

As will appear later, the forthcoming bond was on March 16, 1903, assigned to R. L. McDonald & Co. and this suit was filed in the circuit court of St. Louis on April 4, 1903, to recover on the bond. The petition alleged that the goods attached were of the value of $10,000, and it prays that the value of the goods be ascertained, that plaintiffs recover judgment for the penalty of the bond to be satisfied upon the payment of the amount of the value of said goods, together with their damages on account of the breach of the bond and for the costs of the suit.

The trial took place on December 14, 1905, without a jury. The plaintiffs introduced much evidence to show that the goods attached on May 28, 1896, were worth in cash as high as $15,000. The defendants introduced two of the appraisers, who originally appraised the attached goods, and they swore that the goods were of the appraised value when attached, and worth much less in 1898. Under the petition and the stipulation (which was entered into between the parties), the sole and only contest during the trial was as to the value of the attached goods; the plaintiffs maintaining that the goods were worth $10,000, and the defendants claiming they were worth only the appraised value. The defendants' evidence tended to show that they had always been ready and willing to pay and offered the appraised value of the goods to plaintiffs, but that the offer was refused because plaintiffs claimed the value of the goods was more than the appraised value. On June 29, 1906, the court rendered judgment in favor of plaintiffs for the penalty of the bond, to wit, $6,949, to be satisfied upon payment of $3,474.50 and interest from May 28, 1896. The court made findings of facts and gave declarations of law, of its own motion, to the effect that the goods attached were only of the value fixed by the three appraisers selected by the sheriff, when the goods were attached, as defendants claimed, but also declared the law to be that plaintiffs were entitled to interest on the value of the goods from the date of the giving of the forthcoming bond on May 28, 1896. The court, on July 3, 1906, after its judgment was rendered, allowed plaintiffs to amend their petition by interlineation so as to ask for interest instead of damages on account of the breach of the bond as originally claimed in the petition, to which action of the court the defendants excepted. The defendants have appealed from the judgment rendered because the court allowed interest on the value of the goods from May 28, 1896.

As shown by the stipulation of the parties, on February 28, 1898, R. L. McDonald & Co. obtained judgment against the defendant Morris Lazarovic in the sum of $5,041.68 and costs, and the defendant was by the court ordered to deliver the property attached for the purpose of satisfying said judgment. The evident meaning of this statement in the stipulation is that R. L. McDonald & Co., upon obtaining their judgment against the defendant Morris Lazarovic also obtained an order against Morris Lazarovic as defendant, and not against the defendants in the present action as obligors on the forthcoming bond. The condition of the forthcoming bond clearly contemplated the making of an order by the court directing when and where the property should be delivered to the sheriff to abide the judgment of the court; otherwise, no meaning can be attached to its language.

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