Pittsburg, J.E. & E.R. Co. v. Wakefield Hardware Co.

• Decision Date: 19 April 1904
• Citation: 47 S.E. 234,135 N.C. 73
• Parties: PITTSBURG, J., E. & E. R. CO. v. WAKEFIELD HARDWARE CO.
• Court: North Carolina Supreme Court

47 S.E. 234

135 N.C. 73

PITTSBURG, J., E. & E. R. CO. v. WAKEFIELD HARDWARE CO.

Supreme Court of North Carolina

April 19, 1904

Appeal from Superior Court, Guilford County; O. H. Allen, Judge.

Action by the Pittsburg, Johnstown, Ebensburg & Eastern Railroad Company against the Wakefield Hardware Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

An action against a surety on an attachment bond in the penal sum of $200 is not within the jurisdiction of the superior court.

Scales Taylor & Scales and Robert D. Douglas, for appellant.

WALKER J.

This action was brought to recover damages for wrongfully suing out an attachment, and was tried below on a demurrer to the complaint. The plaintiff alleges substantially that the plaintiff, the defendant hardware company, and the North Carolina Coal & Coke Company are corporations, and that, the coal and coke company being indebted to the hardware company for goods sold and delivered, the latter brought an action for the recovery of the debt against the railroad company and the coal and coke company, and caused a warrant of attachment to be issued, which in February, 1901, was levied on 10 cars then at the mine of the coal and coke company, and that said cars were seized and held until April, 1903; that at the time the warrant was issued the hardware company gave a bond in the sum of $200, with the usual condition, upon which the defendant A. W. Vickory is surety; and that said attachment suit was dismissed as to the plaintiff, with costs, and judgment rendered against the coal and coke company for the amount of the debt in favor of the hardware company. Plaintiff then brought this action against the latter company and the surety on its attachment bond, A. W. Vickory alleging that the attachment was wrongfully sued out, and praying for the recovery of compensatory and punitive damages. The defendant demurred to the complaint upon the following grounds: (1) That there is a misjoinder of parties the defendant Vickory not being a necessary or proper party to the cause of action at common law for wrongfully and maliciously suing out the attachment, but being liable, if at all, only on the bond; (2) that two causes of action are improperly joined--one for wrongfully and maliciously causing the attachment to be issued, and the other for a breach of the condition of the attachment bond. The court overruled the demurrer, and the defendant excepted and appealed.

The demurrer should have been sustained on both grounds. The plaintiff has alleged in his complaint two causes of action though he has not stated them separately, as he should have done. Code, § 267 (7). Causes of action may be united in a complaint when they arise out of the same transaction or transactions connected with the same subject of action whether they be in contract or in tort (Code, § 267 [1]; Cook v. Smith, 119 N.C. 350, 25 S.E. 958), but each of them must affect all the parties to the transaction (section 267 [7]). "It is not sufficient that some of the defendants be affected by each of them. All of the defendants must be affected by each of them to warrant the union of them in one suit." Howse v. Moody, 14 Fla. 65. In this case the plaintiff has sued the hardware company for wrongfully and maliciously causing to be issued the attachment for which the said company alone is liable in damages, and has joined as a defendant A. W. Vickory, the surety on the attachment bond, who is liable solely by reason of his suretyship on his contract of indemnity, and to the amount only of the penalty of the bond, $200. One cause of action, therefore, is for the wrongful and malicious injury to the plaintiff (using the word "injury" in its technical sense), and the other is for the breach of the condition of the attachment bond, and the defendant Vickory can in no way be "affected" by the former. He is not liable generally to the plaintiff for damages simply because he signed the bond as surety, but his liability arises entirely out of contract, and is quite different in its nature from that of his codefendant for the tort it is alleged to have committed in maliciously suing out the attachment. Fell v. Porter, 69 N. C., at page 142. The defendant Vickory is liable by reason of his undertaking, according to the statute, to the effect that, if the defendants recover judgment, or the attachment is set aside by order of the court, the plaintiff in the attachment suit "will pay all costs awarded against it, and all damages sustained by reason of the attachment." As said by Pearson, C.J., for the court, in Fell v. Porter, supra, a sheriff may be liable on an implied contract upon a principle of the common law, while as to his surety there is no such implied undertaking, and no other liability save that which is set out in his bond, it being an obligation to pay to a certain amount subject to conditions. The liability of the surety is said to be strictissimi juris, which means no more than that he shall not be held to answer beyond the precise terms of his contract, and only to the extent that the particular liability which is alleged to exist is covered by his written obligation. Pingrey on S. & G. § 112. When he is called upon to answer for any liability based on his suretyship, he has a right always to ask, "Is it so nominated in the bond?" or other instrument which is the evidence of his undertaking. Whether, if Vickory had been liable jointly with his codefendant for the tort alleged to have been committed in wrongfully and maliciously suing out the attachment, he could properly have been joined with the latter in an action upon that liability and also upon the bond, is a question we need not decide, as it is not presented upon this record. Fell v. Porter, supra. In the case of Cook v. Smith, 119 N. C., at page 356, 25 S.E. 958, this court, speaking by the present chief justice, said: "Always, when the sheriff is sued for official liability, he is responsible personally, and his surety should be sued on the relation of the state; but it has never been held a defect to join them." This was said with reference to the separate liability of the sheriff for an official act, which at the same time constituted a breach of his bond, so that while the sheriff in such a case is personally liable, as if he had not signed the bond, his surety is liable for the act of the sheriff because it is also a breach of his bond. The two liabilities are, in legal effect, the same. They are identical and coextensive in principle, though not in amount. But when the officer or principal, in addition to the liability on his bond, is independently liable by reason of some act for which the surety is not liable, or which, in...