The State ex rel. Blair v. Pitman

• Court: Kansas Court of Appeals
• Writing for the Court: JOHNSON, J.
• Citation: The State ex rel. Blair v. Pitman, 111 S.W. 134, 131 Mo.App. 299 (Kan. App. 1908)
• Decision Date: 08 June 1908
• Parties: THE STATE OF MISSOURI ex rel. R. G. BLAIR, Respondent, v. L. PITMAN et al., Appellants

111 S.W. 134

131 Mo.App. 299

THE STATE OF MISSOURI ex rel. R. G. BLAIR, Respondent, v. L. PITMAN et al., Appellants

Court of Appeals of Missouri, Kansas City

June 8, 1908

April 6, 1908.

Appeal from Jasper Circuit Court.--Hon. Howard Gray, Judge.

AFFIRMED.

Judgment affirmed.

F. L Forlow and H. W. Currey for appellant.

(1) There is no bill of exceptions, but we are entitled to have this court pass upon our objection that the petition does not state facts sufficient to constitute any cause of action. The answer directly raises the question. R. S. 1899, sec. 602. (2) The parties to a bond (not executed for the benefit of the general public, but for the benefit of specific persons) are those named therein; and the nominees only can maintain suits for breaches thereof. Dayton v. Warne, 43 N J. Law, 659; Township v. Hull, 1 A. 492; Sister Mary Nonner v. Carlton, 52 A. 210; Barber v. Glendose, 99 N.W. 548; Buffalo v. M'Naughton, 35 N.Y.S. 453; Hurd v. Insurance Co., 34 N.Y.S. 915. (3) This bond is to be distinguished from bonds of public officers, which are generally for the benefit of persons not named therein as obligees. Jefferson v. Asch, 53 Minn. 449. (4) The right to sue on this bond is given to one who files an interplea under the provisions of section 417, and being a right given by statutes, can be availed of only by the person filing the interplea. Sutherland, Statutory Construction, secs. 392, 393.

McReynolds & Halliburton for respondent.

(1) Section 764, Revised Statutes 1899, provides that where an interest is transferred pending action suit may be continued in the name of original party. The transferee being bound to indemnify the transferer. (2) The arrangement between Elmore and Blair and the continuation of the interplea in Elmore's name for the benefit of Blair made Elmore the trustee of an express trust in that action. (3) An express trust in personalty may be established by parol testimony. Bank v. Moss, 80 Mo.App. 408; Pitts v. Weakley, 155 Mo. 109. (4) The transaction between Elmore and Blair subrogated Blair to all the rights of Elmore in the property and interplea action. Barton Bros. v. Hunter, 59 Mo.App. 618; 2 Beach, Mod. Eq. Jur., sec. 804. (5) That Elmore could have maintained this action for the use and benefit of Blair would hardly be disputed by any lawyer. And appellant's attorney substantially so concedes. Our statute expressly provides for such action. (6) The foregoing being true, Elmore, as trustee of an express trust, could maintain this action. R. S. 1899, sec. 541; Leaky v. Lubman, 67 Mo.App. 196; Springfield to use v. Weaver, 137 Mo. 670; Nelson v. Hirsch & Sons Co., 102 Mo.App. 12; Sawyer v. Railway, 156 Mo. 475. (7) And this action can be maintained by both Elmore and Blair or by Blair alone. R. S. 1899, sec. 540; Ellis v. Harrison, 104 Mo. 270; Choteau v. Brigham, 100 Mo. 411, and cases cited; Roswell v. Skinker, 84 Mo.App. 176; Mosman v. Bender, 80 Mo. 584. (8) Pitman v. Elmore, 93 Mo.App. l. c. 595-6.

OPINION

JOHNSON, J.

Action on an attachment bond. Relator alleges in his petition that some time before the writ of attachment was issued and levied, he sold certain personal property owned by him and used in and about a mine in Jasper county to G. H. Elmore for twelve hundred dollars, the sale being made on credit. Defendant Pitman brought suit by attachment in the circuit court of Jasper county against the Chicago-Joplin Lead & Zinc Co., a corporation, on a demand of fourteen hundred sixty-nine and eighty-seven one-hundredths dollars, filed the bond on which the present suit is founded and caused a writ of attachment to be issued and levied on the property previously sold by relator to Elmore claiming it to be the property of the corporation sued. Elmore filed an interplea and afterward becoming dissatisfied with his purchase on account of the litigation in which it involved him, agreed with relator to rescind the contract of sale and further agreed to prosecute the interplea in his own name but for the use and benefit of relator. The issues raised by the interplea were before this court twice on appeal and finally were resolved in favor of Elmore who was adjudged to be the owner of the attached property. [93 Mo.App. 592; 113 Mo.App. 513.] During the pendency of that suit, Pitman converted the property into money and the present action is to recover judgment on the attachment bond for the value of the property and the amount of the fees and expenses relator laid out while litigating in the name of Elmore. Answers were filed by the several defendants which presented defenses we do not find it necessary to state. The cause was tried before the court sitting as a jury and relator was given judgment for the penalty of the bond to be satisfied by payment of the amount adjudged to be due on his demand. Defendants made no bill of exceptions and brought the case here by appeal on the single proposition that the petition on its face shows that relator has no cause of action.

The condition of the attachment bond is as follows: "If the said plaintiff shall prosecute his action without delay and with effect; refund all sums of money that may be adjudged to be refunded to the defendant or found to have been received by the plaintiff and not justly due to him and pay all damages and costs that may accrue to any defendant, garnishee or interpleader by reason of the attachment, or any process or proceeding in the suit, or by reason of any judgment or process thereon and pay all damages and costs that may accrue to any sheriff or other officer by reason of acting under the writ of attachment, following the instructions of the plaintiff and pay all costs of the suit incurred on the part of the plaintiff, then this obligation is to be void, otherwise to remain in full force."

It will be observed the condition just quoted is in conformity with the provisions of the statute. (Section 372, Revised Statutes 1899.) Prior to the revision of 1889, that statute (then section 404, Revised Statutes 1879) did not require the attachment bond to provide for the indemnification either of an interpleader or of the officer who served the writ. The object and effect of the amendment was to include such persons within the protection of such bonds, but defendants call attention to the principle applicable to a cause of action founded on the obligation of a principal and sureties that the relation between the creditor and the security debtor is comprised within the strict letter of the contract and the obligation of the latter, by no liberal intendment shall be extended beyond the undertaking (Bauer v. Cabanne, 105 Mo. 110, 118, 16 S.W. 521), and, assuming that the revisors had this principle in mind when they amended the statute, argue that neither statute nor bond should be interpreted to embrace within the scope of the undertaking indemnity not only to the successful interpleader but also to the purchaser to whom such interpleader, after the levy of the writ and filing of his interplea transfers his interest in the attached property. We concede the soundness of the principle invoked in aid of this contention but think it should not be applied to the facts before us to exclude relator from the protection of the bond. Had Elmore remained the owner of the interest in the property he bought from relator before the attachment suit was instituted, there can be no doubt the final adjudication of the interplea in his favor would have afforded him a right of action on the attachment bond and the fees and expenses incurred by him in the...