Error
to superior court of Cincinnati.
Action
by the Henderson-Achert Lithographic Company against the John
Shillito Company. Judgment for plaintiff was reversed by the
general term, and it brings error. Affirmed.
The
original action was brought by the Henderson-Achert
Lithographic Company against the John Shillito Company in the
superior court of Cincinnati, February 27, 1897, on the
following petition: ‘ Plaintiff says that it and the
defendant are and were, at the times named, corporations by
the laws of the state of Ohio; that on the 24th day of
September, 1889, Belford, Clarke & Co., an Illinois
corporation, was indebted to it in the sum of $2,988, and on
that day the plaintiff brought suit against said Belford
Clarke & Co., in cause No. 44,303 of this court, and duly
levied an attachment on a large stock of books and other
merchandise belonging to said Belford, Clarke & Co., which
were in the possession of the defendant, and the same were
thereupon taken possession of by Leo Schott, the then sheriff
of Hamilton county, by virtue of the writ of attachment then
issued to him in said cause; that another Illinois
corporation, the Book & Stationery Department Supply Company
claimed to be the owner of said attached property, and, in
order to replevin the same, it requested one George B. Fox to
become its surety on a replevin bond, and to procure a
co-surety for such bond, and to this end the Book &
Stationery Department Supply Company, on or about November 1
1889, authorized the defendant, the John Shillito Company,
when the said stock of goods and merchandise which had been
attached by the plaintiff as aforesaid should be recovered by
replevin, to appropriate the same, or so much thereof as
would be necessary, to protect and indemnify said George B.
Fox, and whomsoever he might cause to sign said bond, from
any loss by reason of such suretyship, and the said
defendant, the John Shillito Company, then agreed and
promised the said George B. Fox to hold said stock of books
and other merchandise, or the proceeds arising from its sale,
or so much thereof as would be necessary to indemnify and
protect the said Fox, and whomsoever he might secure to sign
said bond with him, against any loss by reason of his or
their said suretyship, and thereupon, on the 7th day of
November, 1889, the said the Book & Stationery Department
Supply Company brought an action in replevin in this court
(No. 44,378), in which action the said Leo Schott, sheriff,
with the defendant, the John Shillito Company, and this
plaintiff, were made defendants, and the said stock of books
and other merchandise were duly seized and taken possession
of by the coroner of Hamilton county, to whom the writ of
replevin was issued in said action, and were by him taken
from the possession of the sheriff, who held them by the writ
of attachment for the use of the plaintiff as aforesaid; that
subsequently a replevin bond, according to law, was duly
given in said cause, and executed on behalf of the plaintiff
in said cause, by the said George B. Fox and one George Fox,
who signed said bond at the instance and request of his
nephew, the said George B. Fox, who, in signing said bond
himself and in procuring the said George Fox so to sign the
same, relied upon the agreement of the defendant as aforesaid
to hold said stock of books and other merchandise, or
sufficient of the proceeds thereof to protect and indemnify
him and his co-surety; that upon the execution of said bond
by said sureties the said coroner delivered said books and
other merchandise to the John Shillito Company, the defendant
herein, who took possession of the said property for the said
Book & Stationery Department Supply Company, the plaintiff in
replevin, and, in pursuance of its agreement as aforesaid
with the said George B. Fox, the said John Shillito Company
held said stock of books and other merchandise, and has since
sold all or the greater part thereof; that in said attachment
suit (cause No. 44,303 of this court), on July 12, 1890,
final judgment was entered sustaining said attachment, and
rendering judgment in favor of this plaintiff against the
said Belford, Clarke & Co. for $3,129.02 and the costs of
this plaintiff in said cause, taxed at $140.35; that in said
replevin suit (cause No. 44,378) a judgment was duly rendered
on January 22, 1897, in favor of this plaintiff against the
said Book & Stationery Department Supply Company, for
$4,365.56, on which judgment there has been paid the sum of
$948.92, being the amount in the hands of the garnishee in
said cause No. 44,303, which credit was first applied to the
payment of $140.35, costs in said cause No. 44,303, and the
sum of $808.57 was credited upon the judgment in cause No.
44,378, leaving a balance due the plaintiff herein on the
said judgment of $3,556.99, with interest thereon from
January 4, 1897, and the costs of said suit, taxed at $91.14,
which judgment for the balance due thereon is in full force
and effect. And the plaintiff further says that the
defendant, the John Shillito Company, has realized from the
sale of said stock of books and other merchandise more than
sufficient to pay the said judgment and interest and costs in
cause No. 44,378, but, though duly requested, refuses to pay
to or for the plaintiff he balance due upon said judgment, or
to satisfy said judgment; that the said George Fox has died
intestate; that his estate and the surviving surety are
unable to respond to the obligation arising on said bond, so
that the amount due thereon, or any part thereof, cannot be
collected from the said surviving surety, or from the estate
of said George B. Fox, by legal process. Wherefore the
plaintiff prays that the defendant may be decreed to pay to
the plaintiff the sum of $3,556.99, with interest thereon
from January 4, 1897, and the costs of said cause No. 44,378,
taxed at $91.14, and for all other and proper relief.’
An
amendment to the petition, filed February 8, 1898, added the
following allegation: ‘ And the said Book & Stationery
Department Supply Company is a nonresident of Ohio and is
also wholly insolvent, and has no property in this state, and
the judgment against it cannot, nor can any part of it,
hereafter be collected, by execution or otherwise, at
law.’ Issue was joined by the following answer: ‘
The defendant admits that it is a corporation, as alleged;
that the plaintiff commenced and prosecuted to final judgment
an action against Belford, Clarke & Co., numbered 44,303 on
the dockets of this court, and levied an attachment upon a
stock of books and other merchandise, at that time located
upon the property of this defendant; that the Book &
Stationery Department Supply Company instituted an action in
replevin, numbered 44,378, upon the dockets of this court,
executing a replevin bond, with George Fox and George B. Fox
as sureties, and that final judgment has been rendered in
favor of this plaintiff and against said the Book &
Stationery Department Supply Company in said last-named
action. For want of knowledge, the defendant denies that said
George Fox has died intestate, and that his estate and the
surviving surety are unable to respond to the obligations on
said bond, and it denies each and every other allegation in
the petition not herein expressly admitted to be true.
Defendant prays to be hence dismissed, with its costs.’
At the
May term, 1898, the cause was tried to a jury, whose verdict
was for the plaintiff for the amount claimed, and judgment
followed the verdict. A bill of exceptions, duly taken, shows
that evidence was given by both parties in support of the
issues on their respective parts, and that the court
instructed the jury, among other things, in substance, that
it was not necessary the sureties on the replevin bond should
have sustained any loss to entitle the plaintiff to the
verdict, but that the verdict should be for the plaintiff for
the amount claimed, if the jury should find the defendant,
through an authorized agent, entered into the agreement
alleged in the petition, and the sureties on the replevin
bond relied on that agreement. The general term reversed the
judgment, on the ground that the verdict was contrary to law
and unsupported by any evidence, and for error in the
foregoing charge of the court. Error is prosecuted here to
obtain the reversal of the general term. Other facts deemed
important in the disposition of the case will be found in the
opinion.
