Dillon v. Lineker

• Decision Date: 06 July 1920
• Docket Number: 3465.
• Citation: 266 F. 688
• Parties: DILLON et al. v. LINEKER et al. [1]
• Court: U.S. Court of Appeals — Ninth Circuit

266 F. 688

DILLON et al. v. LINEKER et al. ^[1]

No. 3465.

United States Court of Appeals, Ninth Circuit.

July 6, 1920

The defendants in error were the plaintiffs in an action in the court below, in which they alleged that on or about June 20 1910, Norvena Linker, then Norvena Svensen, at the request of the plaintiff in error Mary J. Dillon, borrowed $2,850 from one McColgan, to secure which she executed a trust deed of certain described real property, which she owned, subject to a life estate in her father, and that she turned over the said sum of money to William Winter, the son of Mary J Dillon, for the use and benefit of said Mary J. Dillon; that on or about April 22d McColgan demanded the payment of the said sum of $2,850 and interest thereon, and notified Norvena Lineker that if she did not pay the same he would cause her interest in said real estate to be sold; that she then went to Mary J. Dillon and demanded of her that she pay and satisfy said note and interest, in default of which she, the said Norvena Lineker, threatened to bring action against her and William Winter to recover the amount thereof; that they importuned her not to bring said action, and promised that if she would refrain from instituting the same, she (the said Mary J. Dillon) would cause said debt and interest to be paid and discharged, and would indemnify and save her harmless from any loss or damage in connection with said note and trust deed; that, relying upon said promise, Norvena Lineker refrained from bringing any action against said Mary J Dillon or her son; that Norvena Lineker had no money or property other than said real estate. The complaint then alleged that Mary J. Dillon failed to perform her said promise, and that all the interest of Norvena Lineker in said property was sold under the trust deed to pay said sum of $2,850, together with interest, expenses, and attorney's fees, whereby she lost said property and was damaged in the sum of $35,000, which was alleged to have been the value of said real estate. The answer denied the material allegations of the complaint and alleged that the value of the property was not more than $24,000. The jury returned a verdict for the plaintiffs in the action in the sum of $32.000, which was subsequently reduced by the order of the court to $28,000, for which judgment was entered.

Samuel M. Shortridge, of San Francisco, Cal., for plaintiffs in error.

John L. Taugher, of San Francisco, Cal., for defendants in error.

Before GILBERT, ROSS, and HUNT, Circuit Judges.

GILBERT Circuit Judge (after stating the facts as above).

The case comes to this court upon the judgment roll and without a bill of exceptions. The plaintiffs in error contend that upon the allegations of the complaint the amount in controversy was but $2,850 and interest, and that therefore the court below was without jurisdiction. It is true that in general where a contract to pay a specific sum of money is broken, the damages are measured by the sum stipulated to be paid; but the rule is otherwise 'where the obligation to pay money is special, and has reference to objects other than the mere discharge of a debt, in which case special damages may be recovered, according to the actual injury.' 17 C.J. 863; Green v. Gregory (Tex. Civ. App.) 142 S.W. 999; Scheele v. Lafayette Bank, 120 Mo.App. 611, 97 S.W. 621; Bixby-Theisen Co. v. Evans, 174 Ala. 571, 57 So....