Hendley v. Mcintyre

• Decision Date: 31 March 1903
• Citation: 132 N. C. 276,43 S.E. 824
• Court: North Carolina Supreme Court
• Parties: HENDLEY. v. McINTYRE. Appeal of McSWAIN.

43 S.E. 824

132 N. C. 276

HENDLEY.

v.McINTYRE.

Appeal of McSWAIN.

Supreme Court of North Carolina.

March 31, 1903.

CLAIM AND DELIVERY BOND—SURETY—LIABILITY—RETURN OF PROPERTY—REDUCTION OF PENALTY OF BOND.

1. The surety on a claim and delivery bond is not entitled to have the penalty of the bond reduced by reason of the fact that the property itself has been returned, but he still remains liable to the amount of the penalty for any other default of his principal, as for his failure to pay the damages or costs adjudged against him.

Appeal from Superior Court, Anson County; Robinson, Judge.

Action by A. E. Hendley against J. P. Mc-Intyre, aided by ancillary proceedings in claim and delivery. Defendant gave a bond to return the property, with M. E. McSwain as surety. Judgment for plaintiff adjudging, inter alia, that he recover of McSwain the penalty of the bond, to be discharged on payment of the costs and damages recovered by plaintiff, and McSwain appeals. Affirmed.

Bennett & Bennett, for appellant.

Jas. A. Lockhart, for appellee.

WALKER, J. This action was brought for the recovery of a mule. The plaintiff caused to be instituted, as ancillary to the action, proceedings in claim and delivery. The defendant gave a bond to return the property in the sum of $200, with the appellant, M. E. McSwain, as surety, conditioned as required by law. The plaintiff alleged that the defendant procured the mule by false and fraudulent representations, made In order to induce him to exchange the mule for a horse. Issues were submitted to the jury, and a verdict was returned in favor of the plaintiff, by which it was found, substantially, that the plaintiff was entitled torecover the possession of the mule, and damages for detention to the amount of $10, and the value of the mule was fixed at $100. The court rendered judgment that the plaintiff recover the mule, and $10 as damages, and his costs, and, in case the mule could not be delivered, that the plaintiff recover, in lieu thereof, $100, the value of the mule as assessed by the jury. The court further adjudged that the plaintiff recover of the surety, McSwain, the sum of $200, the penalty of the bond, to be discharged upon the payment of the damages and costs recovered by the plaintiff, the total recovery not to exceed the penalty of the bond. The mule was returned to the plaintiff. The surety excepted to and appealed from the judgment upon the ground that, as the mule had been returned, he was entitled to a credit of $100, the value of the mule, on the bond, leaving only $100 for the satisfaction of the plaintiff's recovery for damages and costs.

Why, in view of the facts of the case, the appellant is entitled to the credit upon the bond which he claims, we cannot see. The several clauses in the condition of the bond are separate and independent, according to all the authorities, and the obligee may recover full damages for each and every item within the limit of the penalty. The recovery of the thing itself, and not damages in lieu thereof, is the primary object of the suit, and the value is given only as an alternative, when delivery of the...