Cook v. Fidelity & Deposit Co. of Maryland

• Decision Date: 01 February 1909
• Docket Number: 1,591.
• Citation: 167 F. 95
• Parties: COOK v. FIDELITY & DEPOSIT CO. OF MARYLAND.
• Court: U.S. Court of Appeals — Ninth Circuit

167 F. 95

COOK v. FIDELITY & DEPOSIT CO. OF MARYLAND.

No. 1,591.

United States Court of Appeals, Ninth Circuit.

February 1, 1909

This was an action upon a replevin bond executed by the defendant in error to the plaintiff in error, who was plaintiff below.

The complaint alleges that on the 28th day of August, 1905, the Uinta Hereford Cattle Company filed in the court below an action against Cook to recover the possession of certain sheep, horses, and other personal property, alleged to be of the value of $30,000; that in that action one McLaughlin, for and in behalf and by authority of the cattle company executed his affidavit on claim and delivery, upon which affidavit was indorsed by the attorneys for the cattle company a requirement directing the United States marshal of the District of Idaho to take the said property from Cook's possession, and that the undertaking here sued on was given in that action by the Fidelity & Deposit Company of Maryland, under and by virtue of which proceedings the marshal, on certain days therein mentioned, seized and took from the possession of Cook, 7,971 head of sheep, 4 horses and 2 sheep-camp wagons, and delivered the same to the cattle company; that at the time of such seizure Cook was the owner of the property and in the lawful possession thereof; that on the 21st day of September, 1905, the aforesaid notice and affidavit on claim and delivery, as well as the said undertaking, were duly filed in the court below, and that on the 18th day of December of the same year, the cattle company filed in the court below its praecipe requesting the dismissal of the action, and that, accordingly, the replevin action was on that day dismissed at the cost of the plaintiff thereto; that by reason of such dismissal the condition of the undertaking was broken, and that 'said undertaking by reason of said breach of said condition has become forfeited to this plaintiff, and that defendant herein has become and is liable to this plaintiff in said undertaking for the amount hereinafter set forth; that, at the time of the seizure of the property as aforesaid by the United States marshal, the value of the same was as follows, to wit: The value of said sheep was $29,891.25; the value of said horses was $400; the value of said camp outfits was $500'; that the cattle company removed all of said property from the state of Idaho and converted the same to its own use, and that by reason of the alleged taking and the alleged breach of the undertaking the said property has become and is wholly lost to the plaintiff, to his damage in the sum of $30,791.25, for which sum, with costs, the plaintiff sued.

The defendant in the action, in its amended answer, denied that the marshal took more than 7,855 sheep from the possession of the plaintiff Cook under the process mentioned, which number of sheep it admits the marshal delivered to the cattle company, and alleges that he 'so delivered said property in accordance and in compliance with the instructions of Alonzo Cook, the plaintiff herein.'

The amended answer also denied that Cook was at any time after August 25, 1905, the owner or in the lawful possession of any of the said property, and alleges that all times after the date last mentioned the cattle company was the owner and entitled to the possession of all of the said property. It admits that the cattle company filed in the court below its praecipe for the dismissal of its action in claim and delivery against Cook, which praecipe it alleges was (omitting title of court and cause) in this language:

'To Hon. A. L. Richardson, Clerk of the Above-Entitled Court:

'Please dismiss of record the above-entitled action, the controversy therein involved having been settled between the parties. The dismissal may be at plaintiff's costs.

'Dated this 17th day of December, 1905.

'P. W. Spaulding and 'F. S. Dietrich, 'Attorneys for Plaintiff.'

That said praecipe was filed and the said cause was dismissed in compliance with the terms of agreements, made, after the commencement of the action and the seizure of the sheep, by Cook and the cattle company, by the terms of which the cattle company became bound to dismiss the action, 'said parties having by mutual agreement settled the controversy involved in said suit, and said Cook having delivered said sheep and other property to said Uinta Hereford Cattle Company.'

The amended answer denies that by reason of such dismissal, or for any reason, the condition of the undertaking was broken, and denies that for any reason the said undertaking became forfeited to the plaintiff, or that the defendant became or is liable to the plaintiff on said undertaking in any respect. It denies that at the time of the seizure of the property mentioned the sheep were of any greater value than $19,637.50, or that the horses were of any greater value than $50, or that the camp outfit was of any greater value than $50.

The amended answer further alleges, among other things, that on the 15th day of August, 1905, in Douglas county, Neb., the plaintiff Cook sold and transferred to the cattle company all of the property already mentioned, with other property, executing to it a bill of sale therefor, which was annexed to and made a part of the amended answer; that at the same time and place Cook and the cattle company entered into a written agreement in which is recited the fact of such sale, and in which it was agreed that in case there were less than 8,200 head of sheep Cook was to give the cattle company credit for such shortage at the rate of $3 a head, and in case there were less than 450 head of cattle Cook was to give the cattle company credit at the rate of $22 per head, such credits for shortage to be indorsed on the note of the cattle company given to Cook as a part of the purchase price of the sheep and cattle; that by the contract of August 15, 1905, it was further agreed that the cattle company was to pay Cook $3,000 in cash, and that the balance of the purchase price was to be paid in the notes of the company, secured by mortgage on certain lands therein described, which notes and mortgage were to be delivered by the cattle company to North & Stone, bankers at Evanston, Wyo., who were to deliver the same to Cook upon the delivery by Cook of the sheep and cattle to the cattle company, and when the cattle company should give notice that such delivery had been made; that by the contract of August 15, 1905, it was further agreed that Cook should deliver the sheep on their range in Bear Lake county, Idaho, on or before August 25, 1905, and to deliver the cattle at Pegram, Idaho, on or before December 1, 1905; that at the time of the execution of the agreement of August 15, 1905, the cattle company paid to Cook the $3,000 in cash, which he accepted, 'and in due time and manner said Uinta Hereford Cattle Company duly complied with said agreement, and was at all times able, willing, and ready duly to fulfill and perform all the obligations of said agreement upon its part to be performed'; that on the 28th day of August, 1905, the cattle company was, and for some time prior thereto had been, and at all times subsequent thereto continued to be, the owner and entitled to the possession of all of the property described in the plaintiff's complaint, but that the plaintiff then wrongfully withheld the possession thereof from the company, and, having refused to yield the possession thereof after demand made therefor by the company, the latter commenced the replevin action; that while that action was pending, and immediately after the property involved therein had been seized by the marshal as stated, and while the same was in his possession, the cattle company and Cook, for the purpose of settling their pending disputes and difficulties involved therein, and terminating the controversy in respect to the property, on the 2d day of September, 1905, without the knowledge, acquiescence, or assent of the defendant, the Fidelity & Deposit Company of Maryland, entered into the following agreement in writing.

'Agreement.

'This agreement made and entered into in triplicate this second day of September, 1905, by and between the Uinta Hereford Cattle Company, of So. Omaha, Nebr., and Alonzo Cook, of Paris, Idaho, witnesseth:

'That whereas, on the 15th day of August, 1905, at So. Omaha, Nebr., the said Alonzo Cook sold to the said Uinta Hereford Cattle Company certain sheep and cattle enumerated in an agreement for escrow, said agreement, together with one certain promissory note for two thousand dollars, and four certain promissory notes for seven thousand eight hundred dollars each made by the Uinta Hereford Cattle Company, and payable to said Alonzo Cook, now being in the bank of North & Stone, bankers, at Evanston, Wyo., in escrow, and deliverable to Alonzo Cook upon certain conditions and instructions as are specified in said agreement;

'And whereas certain questions arising therefrom have caused the said Cattle Co. to commence suit in the United States Circuit Court for the District of Idaho against the said Alonzo Cook in claim and delivery for certain sheep sold as aforesaid:

'It is therefore agreed by and between the parties hereto that the said suit be dismissed at plaintiff's costs upon the fulfilling of this agreement;

'That the Uinta Hereford Cattle Company is forthwith and within a reasonable time to conform with the laws of the state of Wyoming for the doing of business therein;

'That the Uinta Hereford Cattle Company shall execute a good

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