Goebel v. Stevenson

• Decision Date: 25 October 1876
• Citation: 35 Mich. 172
• Court: Michigan Supreme Court
• Parties: Caroline A. Goebel v. William P. Stevenson and others

35 Mich. 172

Caroline A. Goebel v. William P. Stevenson and others

Supreme Court of Michigan

October 25, 1876

Heard October 17, 1876; October 18, 1876 [Syllabus Material] [Syllabus Material] [Syllabus Material]

Case made from Superior Court of Grand Rapids.

Judgment reversed and judgment entered for the plaintiff here in form against all the defendants, to be enforced only as provided by law in case of joint debtors, and the plaintiff recovered costs in this court.

Joslin & Kennedy, for plaintiff, argued that the bond is valid both by statute and at common law; that as the statute does not prescribe the form of the bond, but provides for its containing either condition, to return the property, or to pay the judgment, both conditions are in strict compliance with the statute, as separate conditions, or combined: C. L. 1871, § 6410; that the bond being given to entitle the obligors to a right or privilege conferred by law, it is sufficient if it conform substantially with the requirements of the statute and does not prejudice the rights of the obligee § 6186; that the statute is directory merely as to the form of the bond: Morse v. Hodsdon, 5 Mass. 317; that it is competent for the parties to add to the conditions of a statutory bond a covenant of the same tenor, where it does not contravene any statute: Drake on At., 4th ed., § 327; Prentis v. Spaulding, 2 Doug. 84; 10 Mass. 239; and as to the validity of the bond at common law, see 12 Iowa 570; 23 Ib. 21; 16 Mo. 258; 16 N. Y., 439; 27 N. Y., 318; 7 Mass. 98; 8 Ib. 373; 1 Mich. 357; 2 Doug. 84; 5 Mich. 436; 17 Wend. 67; 26 Ib. 502.

When the conditions of the contract are to do or refrain from doing some particular act, or in default thereof to pay a given sum of money, it is an alternative obligation, and the sum stated is not a penalty, but stipulated damages, and on breach of the first condition, the second becomes absolute: Sedg. on Dam., 6th ed., 506, 516; Chitty on Cont., 734 and note; 2 Pars. on Cont., 651 and cases cited; 4 Wend. 468; 19 Wend. 104; 24 Wend. 244; 26 Wend. 630; 9 N. Y., 551; 116 Mass. 476; 15 Johns. 225; 16 N. Y., 471; 15 Cal. 226; 32 Mich. 173; 10 Wis. 30; 1 R. I., 454; 28 Mo. 39; 4 Iowa 1; 47 Ill. 41; 21 Vt. 297; that where the parties have explicitly agreed upon the conditions to such obligations, the courts will not interfere with the measure of damages fixed by the parties: 4 Mass. 435; 21 N. Y., 253; 7 Cow. 291; 10 Barb. 59; 12 Ib. 366; 6 East, 529; 2 Story Eq. Jur., § 1318; Story on Cont., § 102; 3 Greenl. Ev., § 257; 7 Mich. 310; 22 Ib. 296; 29 Ib. 212.

The two conditions, it must be presumed, were inserted in the bond for the exclusive benefit of the obligors, giving them the right to choose which they would fulfill,--and they elected to keep the goods and pay the judgment, if the plaintiff should recover one. Whether that choice was wise or unwise, is not now the question at issue. Their choice was made when they appropriated the goods, and did not, nor could they subsequently fulfill the condition of the bond to return the goods, and the plaintiff now has her choice, and she elects to collect the judgment, which defendants undertook to pay.

As to the point that the joint debtor act does not apply to this obligation, which is joint and several, it is argued that the defense was waived by the plea of the general issue, and that the obligation, being joint as well as several, may be treated as joint or several at the option of the obligee, who has an election of remedies in that regard: 9 How. Pr., 4, 90; 46 Barb. 379; 60 N. Y., 100; 3 Ind. 500; 17 Ohio 96; 1 Mich. 356; 4 Mich. 318.

As to the points made upon defects in the affidavit, it is urged that the question is not properly raised; that the defendants being strangers to the record in the attachment suit cannot attack the proceedings collaterally; that they are estopped by their acts and stipulations, as well as the recitals in the bond, from questioning the validity of the proceedings and judgment in that suit, and that even if the affidavit were void, the bond would be valid and founded upon sufficient consideration: 24 Conn. 484; 16 N. Y., 445; 5 Hars. 232; 35 N. Y., 260; 10 Gray 366; 33 Vt. 7; 1 Doug. 188; 32 Mich. 313; 3 Mass. 86, 303; 24 Wis. 143; 5 Pet. 115; 7 Conn. 543; 6 Bin. 292; 116 Mass. 477; 2 Ill. 148; 16 La. An., 78; 18 Cal. 339; 68 Ill. 236; 62 N. Y., 111; 5 Mich. 436.

Norris & Uhl, for defendant. Did the transfer of the cause by stipulation, signed by plaintiff's and by Aldrich's attorneys and by Innes in person, and by no one for Stevenson, give the superior court jurisdiction? (1) Should not Innes' attorney sign the stipulation? (2) Can Stevenson's forum be so changed,--the judgment reaching the joint property of all three? (3) Can any transfer be made by stipulation, the statute making no provision for it? (4) Should not municipal courts keep strictly within their charter? Jurisdictional objections are not waived by failure to insist on them. (5) All the subsequent proceedings are in invitum against Stevenson. (6) Having elected to sue on the bond as joint, plaintiff cannot discontinue as to one or two, and go on as to the one remaining: C. L., § 6146; 11 Wend. 612; 9 Mich. 380; 6 Wend. 500; 9 Ib. 433; 5 Hill 41.

The affidavit for the writ of attachment conferred no jurisdiction to support the writ; and various defects are specified.

If the affidavit does not confer jurisdiction to issue the writ, the bond given solely to obtain release of goods held by order of the writ is void: 1 Denio 185; 3 Ib. 567; 3 Keyes 97; 7 Barb. 253. The recital of the stipulation, that the suit was commenced "by writ of attachment in due form of law," means only that the writ was in due form and not that the affidavit was; and a defense by one joint obligor defendant, inures to the benefit of all; and Stevenson is no party to this stipulation.

Is the joint debtor action provided by the statute (C. L., § 6146) intended to cover contracts which are both joint and several; or is it by its intent and terms to be limited to joint contracts only? This act was remedial--to dispense with proceeding to outlawry of defendant not found and served. Should it be extended beyond its strict letter, to cover cases in which plaintiff may have a several action, and which is not of necessity joint?

The principal question, and the real one upon which the plaintiff brings defendants here, to have ruled, is: the limit of recovery on the bond,--the measure of damages, --whether it be the judgment in the attachment case, or the value of the property attached. The bond is peculiar and sui generis. By its first condition the principal and sureties can produce the property. There is a second condition. The principal alone can pay the judgment. This is surplusage. He is bound by law to pay it. But neither is done. Suit is brought, and the measure of damages, against sureties, is the money value of the condition, provided for them to escape under.

Another view:

The bond is forfeit, when the first condition to return is broken (and the order of these conditions is to be considered), a right of action has accrued and the measure of damages is now, unquestionably, the value of the property, etc. They, the sureties, have no defense, but the principal has the right to come in and relieve them from the effects of the forfeiture, by paying the judgment--which by the second condition he alone can do.

Upon a question of construction of this character there is but little direct authority. The court is, however, referred to 12 Ill. 93; 12 Iowa 572; 3 Met. (Ky.), 558; 2 Met. (Ky.), 209; 4 Cold. 235. The statute, of course, governs, and we contend, settles this construction for us: C. L., § 6412.

The plaintiff claimed below that Phanstiehl v. Vanderhoof, 22 Mich., ruled this bond. How widely different they are may be seen by inspecting the bond in that case.

In that cause the court felt bound to give force to the sole condition, albeit the statute (§ 6412) might have supported a rule of damages upon "any such bond" of only "the full value of the property attached."

We contend: (1) That the superior court of Grand Rapids has no jurisdiction of this cause; (2) That the bond sued on is void because of an insufficient affidavit to support the writ of attachment, by color of which the property was seized and the bond extorted; (3) That the joint debtor action provided by statute (C. L., § 6146) was intended to cover only cases of joint debt, pure and simple.

If these points are ruled against the defendants, then, (4) That the measure of damages was correctly ruled by the court below, as the value of the property released on the giving of the bond, with interest, etc.

OPINION

Graves, J.

This cause comes up from the superior court of Grand Rapids on a case made after judgment on behalf of the plaintiff. It is necessary to refer to previous proceedings in order to understand the matters in controversy. On the 17th of September, 1873, the plaintiff, then Caroline A. Cook, as special administratrix of the estate of Gilbert Cook deceased, sued out of the circuit court for the county of Kent an attachment against the defendant Stevenson. The writ was based on an affidavit made by one Joseph Cook, and was made returnable on the first Tuesday of October after its issue. When sued out it was delivered to the sheriff of Kent county for service, and upon it he seized a quantity of Stevenson's goods and chattels liable to execution, which were duly appraised at two thousand six hundred and twenty-five dollars and seventy cents. A small portion were sold by order of the court as perishable, and brought eighty-eight dollars and fifty-two cents. The sheriff held the residue under the levy, and Stevenson and the...