Levy v. Taylor

• Decision Date: 22 March 1866
• Parties: CHARLOTTE LEVY and Samuel Levy v. WILLIAM W. TAYLOR.
• Court: Maryland Court of Appeals

24 Md. 282

CHARLOTTE LEVY and Samuel Levy v. WILLIAM W. TAYLOR.

Court of Appeals of Maryland

March 22, 1866

Appeal from the Superior Court of Baltimore City:

This is an action upon the injunction bond filed in the case of Rich v. Levy, 16 Md. 74, the record of which case is by agreement to be treated as if set out in the several bills of exceptions. The plaintiffs, now appellants, were the defendants in that case, and the appellee, who in this action was sued, together with Rich, who was not found, became a party complainant in that case in the progress of the proceedings. The material facts of the case are stated in the opinion of this court.

The cause was argued before BARTOL, GOLDSBOROUGH, COCHRAN and WEISEL, JJ.

R Gilmor, Jr., and A. W. Machen, for the appellants: The three rulings of the court below upon the evidence, as appears from the first, second and third exceptions, were all of them erroneous. 1 Stark Ev. 258, 392, marg. Com. Dig. Ev. ( A. 4.) Layborn v. Crisp, 4 M. & W. 320. 3 Inst. 173. Bull N. P. 227, 228. 1 Greenl. Ev. sec. 511. Leake v. Westmeath, 2 Mood. & Rob. 394. Pegg v Warford, 7 Md. 582. Taney v. Bachtell, 9 Gill 209. Marshall v. Haney, 4 Md. 498. Budd v Brooke, 3 Gill, 198. At all events, the defendant could not be prejudiced by the evidence in the mode in which it was offered, and had no right to object. Hardey v. Coe, 5 Gill, 189.

The fourth and last bill of exceptions brings up the prayers and instructions. The plaintiff's second, third and fourth prayers, which were refused, present questions of the measure of damages recoverable upon a bond such as is here sued on, and under the circumstances of this case. The defendant's second prayer, which was granted, went to annul the bond itself, and preclude all recovery.

II. 1. The loss of value sustained by the goods during the operation of the injunction and while they were in the custody of the court under it, as prayed in the bill, was clearly recoverable; and the plaintiff's second prayer ought to have been granted. Wallis v. Dilley, 7 Md. 237. Rubon v. Stephan, 25 Miss. 253.

2. The action being necessarily joint, and made so by the form of the bond, any damages sustained by either of the plaintiffs were recoverable. Wallis v. Dilley, 7 Md. 237. Pugh v. Stringfield, 93 Eng. C. L. 364. Bird v. Washburn, 10 Pick. 223. Loss of debt, or interest, sustained by Samson Levy, (except in so far as covered by the plaintiff's second prayer,) was therefore a proper element of damage, and the plaintiff's third prayer was also free from objection in other respects. Wood v. Fulton, 2 H. & G. 71, 78. Ives v. Bank, 12 How. 165. Hughes v. Wickliffe, 11 B. Mon. 209. Carter v. Thorn, 18 B. Mon. 613. Tryon v. Robinson, 10 Rich. (S. C.) 160. Aldrich v. Reynolds, 1 Barb. Ch. 613.

3. The plaintiff's fourth prayer ought not to have been rejected. Willson v. R. R. Co., 9 C. B. N. S. 632, (99 Eng. C. L.) Ward v. Smith, 11 Price, 19. Wallis v. Dilley, 7 Md. 237, 250, 251.

III. 1. The admission of new parties was provided for by the bill, and the bond is framed with reference to the bill; and what took place therefore was clearly within the contemplation of the contract. Strawbridge v. B. & O. R. R. Co., 14 Md. 360. Oswald v. Mayor of Berwick, 3 Ell. & Bl. 653, (77 Eng. C. L.) aff. 5 Ho. Ld. Ca. 856. Mayor of Dartmouth v. Silly, 7 Ell. & Bl. 97, (90 Eng. C. L. 1.) 2 Wms. Saund, 414, a 145. Vesey v. Mantell, 9 M. & W. 323. Benjamin v. Hilliard, 28 How. 149.

The structure of the bill, as a creditor's bill, indeed made all the creditors parties, in a certain sense, from the beginning. Adair v. New River Co., 11 Ves. 444. And the actual intervention of other creditors effected no substantial change--certainly none which the character of the proceedings does not show was originally contemplated. The bond must be construed as one given in such a suit. Shepherd v. Togwood, Turn. & Russ. 391. Doogan v. Tyson, 6 G. & J. 458.

An injunction has the same scope and operation whether granted at the instance of one or of several complainants.

If the view taken on behalf of the appellee be correct, the law provides no compensation for the damages occasioned antecedently to the admission of the new plaintiffs; a new bond would not cover them.

3. The burden of the obligors was in no manner increased by the admission of co-complainants. With them in, Rich had the same power to prosecute the injunction as before. If they had not come in, and he had died, the injunction would still have remained to require prosecution in order to save the bond. Hawley v. Bennett, 4 Paige, 163. Carter v. Washington, 1 Hen. & Munf. 203. Fowler v. Scott, 6 Eng. (Ark.) 675.

The liability of the surety is never affected--at law, at least--unless the change in the position of the principal is in some manner the act of the obligee. U.S. v. Howell, 4 Wash. C. C. 620. Davey v. Pendergrass, 5 Barn. & Ald. 187. Reese v. Berrington, 2 Ves. Jr. 542. 2 White & Tud. Le. Ca. Eq. 817.

But it is a conclusive objection to the instruction given below that it omits to take into view the essential element in the rule of equity in question, that the change in the contract of the principal has been effected without the consent of the surety. It has been uniformly held both at law and in equity, that if the variance be with his consent he cannot object. 2 White & Tud. Le. Ca. Eq. 824, 828, marg. Bank v. Leavitt, 5 Hamm. 214. Baldwin v. Bank, 5 Hamm. 274. Hunter v. Jett, 4 Rand. 107. 2 Amer. Le. Ca. 413, 414. Sprigg v. Bank, 14 Pet. 201. Woodcock v. R. R. Co., 21 Eng. L. & E. 285. 1 Drewry, 521. Even the subsequent assent by the surety, has been held to preclude him from objecting. Smith v. Winter, 4 M. & W. 466. Hargraves v. Parsons, 13 Ib. 561. Impossibility of performance will not discharge the surety if it arise from his own act. Hurlstone on Bonds, 9 Law Lib. 49 marg. The fact, therefore, that the admission of the other creditors was made by the court upon the application of the appellee himself, and that he is one of them, effectually precludes him from asserting that the obligation of the bond is impaired.

Thos. S. Alexander and Wm. Schley, for the appellees:

The only question supposed to be open on this appeal, presented by the instruction given by the Superior Court to the jury, as stated on page 19 of the printed record, admits that the obligation of the defendant, as surety to the bond on which this action is brought, was discharged by the order of the Circuit Court for Baltimore City, passed on the 14th of April, 1857, and admitting certain other parties as complainants, with the said Rich, to prosecute the aforesaid equity cause, and that as the said writ of injunction was prosecuted with effect from the time of the issuing thereof continually until the passing of the aforesaid order, then verdict ought to be for the defendant.

In support of this instruction the appellee insists:

1st. That the appellee, as surety for Rich, undertook that Rich, so long as he remained sole complainant, and could control the proceedings in the cause, should prosecute the injunction with effect. That the obligation of his bond was discharged by the act of the court in admitting others as complainants without his consent, and with the acquiescence of the defendants to unite with and control Rich in the prosecution of the cause, and as the supposed breach took place after the admission of those other parties, there can be no recovery therefor against the appellee.

That the obligation of a surety is defined by the letter of his bond and is not to be extended by equitable construction, was settled in Arlington v. Merrick, 3 Saund. 411. As illustrative of the same rule, the appellee will rely on the cases referred to in the notes to that case, and also on Union Bank v. Ridgely, 1 H. & G. 327. State v. Wayman, 2 G. & J. 254. Leggett v. Humphreys, 21 How. 76, where it is strictly declared that the obligation of a surety is strictissimi juris, and therefore that a surety for A, as clerk to B, is not bound for the fidelity of A, as clerk to B and C. United States v. White, 4 Wash. C. C. 414. Miller v. Stewart, 9 Wheat. 680. Bonar v. McDonald, 1 Eng. Law & Eq. 1. R. R. Co. v. Whinray, 26 Eng. Law & Eq. 488. Kitson v. Julian, 30 Eng. Law & Eq. 326.

To show that an abatement of suit determines the obligation of the bond. Ormond v. Birely, 12 Mod. 380. Morris v. Matthews, 2 Adol. & Ell. N. S. 293.

2. That the liability of the appellee, as surety, is not affected by the circumstances that he was one of the new parties coming in under the order of the court.

The appellee's counsel cited also the following authorities in support of the above propositions: Rich v. Stewart, 1 Beav. 512. Reese v. Berrington, 2 White & Tud. Le. Ca. Pt. II. 707. 17 Cond. Eng. Ch. 16. Arlington v. Merrick, 3 Saund. 414, n. 5, and 415, a. n. and g. Leighborn v. Crisp, 4 Mees. & Wels. 320. Planters' Bk. v. Sellman, 2 G. & J. 230.

Weisel J., delivered the opinion of the court:

The suit in this case being upon an injunction bond, and the defendant (the appellee) being the surety in the bond, he after oyer, pleaded general performance and for a further plea, that whilst the writ of injunction was in full force and effect, a certain William W. Taylor and others named, filed their petition in the cause in which the injunction was prayed and granted, praying for leave to become parties complainants with Thomas R. Rich, the original complainant therein, which said leave was granted by order of the court of April 14, 1857, admitting the petitioners as co-plaintiffs, who, with the said Rich, did thereafter rightfully prosecute and control said suit. These pleas were accompanied with an agreement of the parties that on the trial of the issue joined on the...