Sprague v. Wells

• Court: Minnesota Supreme Court
• Writing for the Court: DICKINSON
• Citation: Sprague v. Wells, 47 Minn. 504, 50 N. W. 535 (Minn. 1891)
• Decision Date: 16 December 1891
• Parties: SPRAGUE v WELLS ET AL.

47 Minn. 504

50 N.W. 535

SPRAGUEvWELLS ET AL.

Supreme Court of Minnesota.

Dec. 16, 1891.

(Syllabus by the Court.)

1. An action may be maintained upon a penal bond by one of the several obligeres to whom the bond runs jointly, if it be apparent from the whole instrument that distinct obligations were assumed in favor of the plaintiff from those in favor of the other obligees.

2. Upon a breach of the condition in a bond, a right of action accrues; but only nominal damages are recoverable if no actual damage is apparent,-as where the condition is that the obligor shall erect a house on his own land, in which the obligee is not shown to have any interest.

3. The recitals contained in a copy of a written instrument annexed to a complaint do not, as a matter of pleading, serve the purpose of an allegation that the facts are as recited.

Appeal from district court, Hennepin county; HICKS, Judge. Affirmed.

Action by Henry S. Sprague against Mary A. Wells and others on a penal bond. Judgment for plaintiff. Defendants appeal.

Welch, Botkin & Welch, for appellants.

I. A. Barnes, for respondent.

DICKINSON, J.

This is an action upon a bond executed to the plaintiff and two other persons, Beebe and Stone, by the defendant Wells, as principal obligor, and the defendants Canney and Read as her sureties. Upon the demurrer of the two last-named defendants, the questions are raised whether a cause of action is stated in the complaint against them, and whether this plaintiff, being only one of the several obligees in the bond, can maintain an action thereon without joining his co-obligees. The bond is set forth in full in the complaint, and is in the ordinary form of a penal bond running to Sprague, Beebe, and Stone. Then follows a recital of the facts that the principal obligor, Wells, had borrowed a specified sum of money from the plaintiff Sprague, and had executed to him a mortgage upon certain land to secure payment of the same; that she had also borrowed from Beebe and Stone another sum, and given to them a second mortgage upon the same premises as security; and that she was about to erect a dwelling-house upon the mortgaged premises. The expressed condition of the bond is that it shall be void if the principal obligor, Wells, shall erect and complete a dwelling-house upon said premises in accordance with certain specifications particularly stated. The principal obligor covenants to erect the building. Then follow the express agreements that, in case of her default to do so, this plaintiff shall have the right to complete the house; and that any amount paid by him in so doing, to the extent of the penal sum for which the bond is given, ($3,000,) shall be deemed to be secured by this bond, and the obligors liable...