Offterdinger v. Ford

• Decision Date: 20 February 1896
• Citation: 24 S.E. 246,92 Va. 636
• Parties: OFFTERDINGER. v. FORD et al.
• Court: Virginia Supreme Court

24 S.E. 246

92 Va. 636

OFFTERDINGER.

v.FORD et al.

Supreme Court of Appeals of Virginia.

Feb. 20, 1896.

Attachment Bond — Action on — Conditions-Liability of Surety — Pleading — Landlord and Tenant — Attachment for Rent notDue.

1. On an attachment bond conditioned that the obligors pay all the costs and damages "awarded" against the plaintiff in the attachment, the attachment defendant cannot sue the sureties until judgment has been recovered against the principal.

2. On a bond containing such a condition, and also a condition that the obligors pay all damages sustained by "any person" by reason of the attachment, plaintiff having sued out the attachment, defendant in attachment may sue the sureties, under the second condition, without first recovering judgment against the attachment plaintiff.

3. In an action on a bond, that the complaint claims damages for other injuries in addition to those covered by the bond does not render it demurrable.

4. To entitle an attachment defendant to re cover against the obligors on an attachment bond, conditioned on the payment of all damages sustained by any person by reason of the attachment, defendant must show that the attachment was sued out without sufficient cause. That the attachment was dissolved for failure of the officer to perform his duty is insufficient.

5. Code 1873, c. 148, § 4, authorizing the lessor to sue out an attachment for rent to become due within a year, when the lessee is removing, intends to remove, or has removed his effects from the leased premises, without leaving property, liable to distress, sufficient to satisfy the claim for rent, authorizes the suing out of an attachment in such a case, though the tenant is removing in the regular course of business.

6. When the lessee, after removal of property to the leased premises, executes a deed of trust thereon, threatened removal of such property by the trustee authorizes the attachment.

Appeal from circuit court of city of Lynchburg.

Action by H. G. Offterdinger against Joseph A. Ford and others. There was a judgment for defendants, and plaintiff appeals. Affirmed.

John M. Payne, for appellant.

S. S. P. Patteson and W. M. Lile, for appellees.

BUCHANAN, J. The demurrer to the declaration in this case is based upon two grounds:

(1) That the damages claimed must have been awarded against the plaintiffs in the attachment proceeding in an independent action against them before the sureties in the attachment bond could be called upon to answer in damages.

(2) That the declaration claims damages which resulted not only from suing out the attachment, but also for "the sale made andproceedings had under color of the attachment."

The condition of the bond sued on provides—First, that the obligors therein shall pay all costs and damages which may be awarded against the plaintiff in the attachment; and, secondly, that they shall pay all damages sustained by any person by reason of the plaintiffs having sued it out.

The surety in the bond stands upon the precise terms of his contract, and his liability cannot be extended beyond its terms. Upon the first undertaking in the bond, no action could be maintained against the surety until the costs and damages had been awarded against the plaintiff in the attachment.

There was no breach of that condition in the bond until the costs and damages had been ascertained and awarded, and default made in their payment. The surety has not undertaken to pay, —in fact, he does not know what he has to pay, —until the costs and damages have been awarded. There could be no proper assignment of the breach of such condition until the liability of the surety had accrued, and the condition had been broken. It would be an anomaly in pleading if an action could be brought before the breach had occurred.

The contention that the damages will be awarded in the action upon the bond, and the fact thus ascertained upon which the surety becomes liable, cannot be sustained. The right to recover depends upon facts in existence, and upon default made prior to the institution of the action on the bond, and not upon facts ascertained and default made at the end of the action.

When it is remembered that, under section 32, c. 148, Code 1873 (section 2990, Code 1887), it is not necessary that the plaintiff in the attachment should be a party to the attachment bond, it more clearly appears that it was never contemplated that the costs and damages, which the obligors in the bond undertook to pay when awarded, should be ascertained and awarded in an action on the bond against them.

The damages ascertained and awarded in such action would be awarded, not against the plaintiff in the attachment, where he is a party to the attachment bond, but against him and his surety on that bond; and, where he was not a party to the bond, they would not be awarded against him at all, but against the bondsman only. It would be a strange misuse of language to say, in either case, that the damages awarded against the obligors in the bond were damages awarded against the plaintiff in the attachment. 2 High, Inj. § 1640; Sledge v. Lee, 19 Ga. 411; McLuckie v. Williams, 68 Md. 262, 12 Atl. 1; 1 Wade, Attachm. § 298; Tarpey v. Shil-lenberger, 10 Cal. 390.

But, while the plaintiff in this case had no right to bring an action upon that provision of the bond by which the obligors there in undertook to pay all costs and damages which might be awarded against the plaintiff in the attachment, he had the right to maintain his action on the other provision in it, by which they undertook to pay all costs and damages which might be sustained by any person by reason of the suing out of the attachment

The words "any person" are broad enough to include the defendant in the attachment; and, if it had been intended to exclude him from the benefit of that provision, and to confine him exclusively to the other provision of the bond for indemnity, the ordinary and natural mode of expression would have been to say "any other person, " and not "any person."

Not only does the language used include the defendant, but there are strong reasons why he should have been included. Under section 30, c. 148, Code 1873, it was provided that the defendant might make defense in the attachment suit on the ground that it was sued out without sufficient cause, and, if the court or jury found that the defense was well founded, judgment could be entered against the plaintiff in favor of the defendant for the damages sustained; and, when the defendant had obtained such a judgment, if it were not paid, he could bring his action upon the attachment bond, and recover on that provision of the bond by which the obligors in it had undertaken to pay all costs and damages which might be awarded against the plaintiff in the attachment. But, where the defendant in the attachment could not make defense, as was frequently the case, because he had no actual notice of the proceedings until it was too late to make defense, what is his remedy, if he has no right to sue upon the bond? He will be compelled to resort to his action on the case for damages. In such action, he cannot recover, however great his damages may be, merely on the ground that the attachment was sued out without sufficient cause, but he must allege and prove that it was sued out with malice and without probable cause. If he be successful in his action on the case, and get judgment, it is by no means clear that the sureties on the attachment bond are liable for anything but the actual damages which he has suffered by reason of suing out the attachment.

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