Rubelman Hardware Co. v. Greve

• Decision Date: 19 May 1885
• Citation: 18 Mo.App. 6
• Parties: RUBELMAN HARDWARE COMPANY, Respondent, v. G. H. GREVE ET AL., Appellants.
• Court: Missouri Court of Appeals

18 Mo.App. 6

RUBELMAN HARDWARE COMPANY, Respondent,

v.G. H. GREVE ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

May 19, 1885.

APPEAL from the St. Louis Circuit Court.--BARCLAY, J.

Reversed and dismissed.

P. E. BLAND, for the appellants.

HENRY W. BOND, for the respondent.

LEWIS, P. J., delivered the opinion of the court.

This is a suit upon a penal bond whose condition is thus set forth: “The condition of the above obligation is such, that, whereas G. H. Greve, on the 30th day of August, A. D. 1882, obtained a restraining order or injunction against Isaac M. Mason and Geo. A. Rubelman Hardware Company. Now, if the said G. H. Greve shall pay all damages that may be occasioned by said restraining order or injunction and abide the decision which shall be made therein, and pay all sums of money, damages, and costs, that shall be adjudged against him if the injunction or restraining order be dissolved, then the above obligation to be void, otherwise to be and remain in full force and virtue.” The stipulation that the obligor “shall pay all damages that may be occasioned by said restraining order or injunction,” is not found in Revised Statutes, section 2710, which provides for the giving of injunction bonds, but the other stipulations are strictly what the statute prescribes. The only breach assigned in the petition is upon the stipulation which does not appear in the statute. There was a judgment for the plaintiff. The question brought up by this appeal is, whether an action is maintainable on the breach alleged.

The argument for defendants stands upon the general proposition that, where a statutory bond contains stipulations additional to those prescribed by statute, such additional stipulations are nullities, and rests upon the authority of Dorriss v. Carter (67 Mo. 544), as having established this rule in Missouri. It is difficult to understand why the citation is so relied upon. In the whole report of that case, there is not a word about the effect of an extra-statutory condition in a statutory bond. The bond there sued on is described as “a statutory injunction bond,” and does not appear to have contained any but the statutory conditions. The court found that not one of these was shown to have been broken, and that the pretended breach did not fit the stipulations. The decision has not the least relevancy to any question in the present case.

As a general proposition, all parties have a right to agree, in the form of a penal bond, or otherwise, upon any undertaking which is not prohibited by positive law, or forbidden by public policy. It is the leading function of civil courts to enforce all such undertakings, as far as practicable, whenever called upon by aggrieved contracting parties. This fundamental principle furnishes the key to numerous adjudications which hold that a bond given in aid of a statutory proceeding may depart from the statutory form, and yet be a good common law bond; and to say that it is a good common law bond, means nothing more than that it binds the obligor to a lawful act, and is not lacking in the essentials of mutuality and sufficient consideration. Thus, in Barnes v. Webster (16 Mo. 265), Scott, J., says: “All bonds, though voluntary, if they do not contravene public policy, nor violate any statute, are valid and binding on the parties to them.” As to what constitutes a voluntary bond, it is apparent that a bond given in conformity with a statute, so as to effect a contingent statutory purpose, is not voluntary, because the obligor is compelled to give it, in order to secure a remedy or right. But if the bond, although intended for a statutory object, be not such as the statute requires, it is to that extent voluntary, and is enforceable or not, according to common law principles; subject, of course, to any direct statutory restriction. Such a restriction may be found in cases where the statute expressly prohibits certain conditions in a bond, or declares that a bond taken in any form, other than the one prescribed, shall be void. It was held in Grant v. Brotherton (7 Mo. 458), that “a bond given under a statute, but not following the words used in the act, is nevertheless valid; unless the statute prescribes a form, and declares that all bonds not taken in the prescribed form shall be void.” Said Judge Napton: But there is no objection to a bond taken under the statute of this state, if it be a good bond between the parties at common law, and no conditions are prescribed which have been prohibited by statute. The State ex rel. v. O'Gorman (75 Mo. 370), was the case of an official bond which did not contain all the statutory conditions. Said Norton, J.: “It is also insisted that the bond sued upon is not sufficient to bind defendants because it does not contain all the conditions prescribed by the statute. Conceding the bond not to be good as a statutory bond, the conclusion drawn from this fact by counsel by no means follows. If not good as a statutory bond, being voluntary, it is nevertheless good as a common law bond, and the parties executing it are bound by all the conditions it contains, and to the full extent of such conditions.” See also, The State to use v. Thomas, 17 Mo. 503.

The Missouri adjudications supposed to bear upon the present case are separable into three classes: In the first class, the bond given in aid of a statutory proceeding either does...