General Securities Company v. Hindes

• Decision Date: 11 July 1925
• Docket Number: 26,059
• Citation: 119 Kan. 226,237 P. 659
• Parties: THE GENERAL SECURITIES COMPANY, Appellee, v. W. P. HINDES, GEORGE C. CHRISTOPHER and CLARK V. JOHNSTON, Appellants
• Court: Kansas Supreme Court

237 P. 659

119 Kan. 226

THE GENERAL SECURITIES COMPANY, Appellee, v. W. P. HINDES, GEORGE C. CHRISTOPHER and CLARK V. JOHNSTON, Appellants

No. 26,059

Supreme Court of Kansas

July 11, 1925

Decided July, 1925.

Appeal from Sedgwick district court, division No. 1; THOMAS E ELCOCK, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. REPLEVIN--Bond--Statutory Conditions--Validity. A bond given in a replevin action, which is not conditioned as required by statute, is not void for that reason; it may be enforced as a common-law bond in accordance with its terms.

2. SAME--Bond-Statutory Conditions--Liability of Sureties. In an action in replevin the sheriff took possession of the property under an order of delivery, properly issued. The defendant gave a bond conditioned only for the return of the property, or its value, in the event its return should be adjudged. It did not provide for the payment of damages and costs as required by statute. (R. S. 60-1007.) In form it was conditioned as a delivery bond in attachment. (R. S. 60-912.) The sureties did not know the nature of the action, whether replevin or attachment; they read and understood the bond signed and did not intend to bind themselves by conditions not named therein. Plaintiff recovered judgment for the return of the property and for damages and costs. The property was returned. In an action against the sureties on the bond for the damages and costs awarded in the replevin action it is held plaintiff cannot recover.

C. A. Matson and I. H. Stearns, both of Wichita, for the appellants.

Charles G. Yankey, W. E. Holmes, D. W. Eaton, John L. Gleason, J. A. Brubacher, W. D. Jochems and J. W. Sargent, all of Wichita, for the appellee.

OPINION

HARVEY, J.:

This is an action against the sureties on the bond hereinafter set out. It was tried to the court, judgment was rendered for plaintiff, and defendants have appealed.

In May, 1920, the General Securities Company brought an action in replevin against Clark V. Johnston for a certain automobile in which plaintiff claimed a special interest by virtue of a chattel mortgage. An affidavit in replevin and a replevin bond were filed and an order of delivery was issued by the clerk of the court and delivered to the sheriff, and the sheriff took possession of the automobile. Within twenty-four hours Johnston presented to the sheriff the following bond:

"DELIVERY BOND.

"In the District Court of Sedgwick County, State of Kansas, Eighteenth Judicial District, Sedgwick County.--The General Securities Company vs. Clark V. Johnston, ss.

"Know all men by these presents, That we, Clark V. Johnston and W. P. Hindes, are held and firmly bound unto The General Securities Company, plaintiff, in the penal sum of five thousand dollars, to the payment of which, well and truly to be made, we do hereby jointly and severally bind ourselves, our heirs, executors, administrators and assignees.

"Witness our hands, this 12th day of May, A. D. 1920.

"The condition of the above obligation is such that, whereas an order of delivery has issued out of the district court of Sedgwick county against Clark v. Johnston at the suit of The General Securities Company, bearing date the 12th day of May, A. D. 1920, and directed and delivered to the sheriff of Sedgwick county; and whereas, the said sheriff hath seized upon and taken the following property, to wit:

"One Apperson eight-cylinder Anniversary Tourister model, motor # 19248. valued at $ 2,500.00, and upon the signing of this obligation has been permitted to remain in the hands of said Clark V. Johnston.

"Now, therefore, if said property above described, or its appraised value in money, shall be forthcoming to answer the judgment of said court in said cause, at the time and place appointed by said officers according to law, then this obligation to be void; otherwise to remain in full force and virtue in law.

CLARK V. JOHNSTON,

W. P. HINDES,

GEO. C. CHRISTOPHER."

The sureties severally qualified upon the bond, it was approved by the sheriff and filed with the clerk of the court, and the automobile was returned to the defendant Johnston. Thereafter that action came on for trial. The plaintiff recovered judgment against Johnston for the possession of the automobile, or in lieu thereof the sum of $ 500, which was found to be the value of the car, and also judgment for plaintiff for damages for the wrongful detention of the automobile in the sum of $ 1,862.50, and that the judgment for damages should bear interest at the rate of ten per cent per annum, and also judgment for the costs in the replevin action taxed at $ 27.70. The automobile was returned to plaintiff in response to this judgment.

This action is upon the bond above set out for the amount of the damages and costs awarded plaintiff by the judgment against Johnston in the replevin action.

It will be noted that the bond above set out is not conditioned as required by the statute (R. S. 60-1007) for a redelivery bond in replevin, in that there is omitted from the bond the condition that the obligors "will pay all costs and damages that may be awarded" against defendant. In form the bond is a forthcoming bond or delivery bond in attachment, provided for by section 60-912.

The petition in this case set forth two causes of action. The first, in effect, was to reform the bond so as to include the condition that the obligors "will pay all damages and costs" adjudged against the defendant, upon allegations that this had been omitted from the bond by mutual mistake. The second cause of action declared upon the bond as though the conditions relied upon were written in it. Issues were joined by answer and reply. At the beginning of the trial the plaintiff withdrew its cause of action for the reformation of the bond, and its counsel stated: "We are relying simply upon the bond as being a redelivery bond in replevin and as being subject to all the obligation of such a bond." At the close of plaintiff's evidence defendants interposed a demurrer, which was sustained. Plaintiff then moved the court for leave to withdraw its withdrawal of that portion of its petition relating to the reformation of the bond and to reinstate the cause of action for reformation, and for leave to introduce additional testimony. This motion was sustained. Evidence was then offered by both sides as to the circumstances under which the bond sued upon was executed. This shows, in substance, that the form of the bond to be executed was furnished by the sheriff; that the sureties on the bond clearly understood they were signing a bond only for the delivery of the property; that they read the bond, knew its terms, and would not have signed a bond conditioned for the payment of damages and costs in addition to being conditioned for the return of the property, and that they were not advised and did not know the nature of the action, whether replevin or attachment, and further disclosed that the bond, before it was accepted and approved, was examined by counsel for plaintiff, specifically with reference to the qualification of sureties, and that plaintiff's counsel at that time made no objection to the form of the bond and consented that the same might be approved by the sheriff. At the close of all the evidence the case was taken under advisement and briefs furnished, and it was later decided. At the time of rendering the decision, and in explanation thereof, the court made the following statement:

"For the purpose of clearing the record and explaining in a measure the sundry rulings of the court made throughout the trial of the case and reconciling the same with the judgment now rendered, the court will say that it has come to the conclusion that the law is and ought to be that one who signs a statutory bond in a statutory action should be held and is held to the terms and conditions prescribed by the statute, whether the same appear in the bond or not, and that this bond, while in form it is a forthcoming bond in attachment having been given in a replevin action, all the conditions that should have appeared in a proper redelivery bond in a replevin action should be read into the bond. In response to a request on the part of the defendants Christopher and Hindes, the court will state that in the court's opinion this action does not proceed on any equitable theory of reformation, but is rather a liability imposed by the law, and no findings are made in this case as to the existence or nonexistence of any mutual mistake of the parties in the execution of the bond."

A similar statement was embodied in the court's conclusions of law.

Are the liabilities of sureties, upon bonds given in a replevin action for the possession or retention of the property pending the action, determined by the conditions of the bond given, or by the statute which provides the terms of the bond which must be given to entitle the party to such possession? This is the single question presented by this appeal.

Appellee urges the rule, which was applied by the trial court, stated in 9 C. J. 34, as follows:

"The law at the time of the execution of a bond is a part of it if it gives to the bond a certain legal effect it is as much a part of the bond as if in terms incorporated therein. Where a bond is given under the authority of a statute in force when it is executed, in the absence of anything appearing to show a different intention it will be presumed that the intention of the parties was to execute such a bond as the law required, and such statute constitutes a part of the bond as if incorporated in it, and the bond must be construed in connection with the statute and the construction given to the statute by the courts. Such a bond must be given the effect which in reason...