Abrahams v. Jones , 20 Ill. App. 83 ( 1886 )

McAllister, J.

This action is upon a penal bond for the performance of covenants. The declaration sets out the bond and its conditions, and what purports to be two separate assignments of breaches, which are to be regarded as separate counts or declarations, and to be pleaded to as such. Safford v. Miller, 59 Ill. 209.

By the settled rules of practice in this State if both such assignments of breaches are bad in substance, and neither of them shows a legal breach of any of the conditions of said bond, advantage of the defect might he taken by the defendant below by general demurrer, motion in arrest of judgment, or on error.

From our understanding of the record in this ease, two material questions are properly presented for decision. First, was there any legal breach of any covenant embraced in the condition of said bond set forth and shown by either of said assignment of breaches. Secondly, if both were defective, was such defect cured by the verdict.

In the outset, it should be stated, (and the statement does not admit of controversy,) that the condition of the bond herein is not framed in conformity with, but is substantially variant from the condition as prescribed by § 10 of our Replevin Act, and there is no United States statute prescribing any. It is therefore to be regarded as a voluntary, common law bond; so that, in construing its covenants, the intention of the statute becomes wholly immaterial. In such case the liability of the surety will not be extended by implication or construction beyond the precise terms of his undertaking, which is to be strictly construed. Waters v. Simpson, 2 Gilm. 570; Sharp v. Bedell, 5 Gilm. 88; Ovington v. Smith, 78 Ill. 250; Miller v. Stewart, 9 Wheaton, 680; Lang v. Pike, 27 Ohio St. 498; Chase v. Ries, 10 Cal. 518.

The part of the condition of said bond on which the final assignment of breach is predicated, was that Martin and Graham (the plaintiffs in the replevin suit) should make return of said property to said defendants if return thereof should he awarded by the said circuit court.

The said replevin suit was by Martin and Graham against seventeezz different defendants, charged with having jointly, wrongfully taken and detained the goods described in the writ. Among those defendants was. the Traders Bank. Mow the breach assigned was that said circuit court awarded a return of fifty barrels of whisky (which was a part of the goods replevied) to said Traders Bank, and that Martin and Graham had neglected and refused to make suck return to said Traders Bank. There is no allegation that the court had awarded a return to the defendants, or that Martin and Graham had neglected, refused or failed to make return of the property to the defendants. Thez'e is nothing appearing on the face of the bond to show that the interests of the defendants in the replevin suit were several as respects the goods replevied, or any of them. Forina v. Tesson, 1 Black. 309; Bradburne v. Botfield, 14 Mees. & Welsb., 559. What is stated does not amount to a breach of the undertaking according to its terms? and, consequently, no cause of action was stated by that first assignment of breach.

The second assignment of breach is in effect that said Traders Bank had been compelled to and did pay out divers sums of money amounting, to wit, to twenty-five hunched dollars in and about defending said replevin'suit and obtaining said judgment of return, which the defendants, though requested, had not paid to the plaintiff. There is no undertaking in the condition of the bond sued upon, that the obligoi-s in that bond would pay to the plaintiff as United States marshal any money which the Traders Bank or any other defendant in the replevin suit should be compelled to expend in the defense of that suit. And there is no allegation in that assignment of breach or elsewhere in the declaration, that the plaintiff in this present suit, the said marshal, had been dazzmified or had been compelled to pay or become liable to pay said Traders Bank any sum by reason of having executed said wz-it of replevin. So that said second assignment of breach fails to show any breach of the condition of said bond or any cause of action.

The next question is whether the defects in the several counts above pointed out are cured by verdict.

Neither of the pleas, non est factum or the plea that the merits had not been tried and property in Martin and Graham, put in issue any of the matters assigned for breaches, but impliedly admitted them.

There seems to us to be two reasons why the verdict can not be held to have cured the defect in the declaration. The first arises from the general rule of practice. The general rule is, that a verdict will aid a title or cause of action imperfectly set out, but not an imperfect title or cause of action. Here is a case of an imperfect cause of action. The other reason is that there being no traverse of the matters alleged as constituting breaches, but the same being admitted by the pleadings, the plaintiff below can not be presumed to have introduced evidence supplying imperfections or omissions.

The ease of King v. Sea, 6 Bradwell, 190, is directly in point, and cites the authorities applicable to the question. Dale v. Dean, 16 Conn. 579, is also in point, and presents an able and exhaustive discussion of the law.

We are of opinion that the court below erred in not sustaining the defendant’s motion in arrest of judgment, for the insufficiency of the plaintiff’s declaration.

For that error the judgment will be reversed, the cause remanded and a repleader awarded.

Judgment reversed.