Peerce v. Athey , 4 W. Va. 22 ( 1870 )

Maxwell, J.

The first cause assigned as error in this case is, that the judgments enjoined were several and for different sums, and in which the obligees in the bond on which the action was brought, had several and distinct-claims fixed by law and for which there could not be a joint recovery of either debt, interest, or damages. The cases of The St. Louis, &c., R. R. Co. and others vs. Coulties, and same vs. Hawks’ adm’r, 33 Ill’s, 188, are relied on to sustain this assignment of error. The actions were debt brought upon an instrument by which the defendants below acknowledged themselves bound to nine persons, of whom Coulties and Hawks were two, according to their relative and respective several interests in the penal sum of 3,000 dollars, which was conditioned that the railroad company should, on the assessment of damages to be made to secure the right of way, pay to the obligees relatively and respectively, the damages which might be assessed. The declarations alleged the assessment of the damages of the plaintiff in each suit, and the non payment of same by the railway company; but it was not alleged that the damages of the other obligees had been assessed, nor was there any allegation in regard to the extent of their respective interests. The obligees were severally the owners of different tracts of land over which the railway company were proceeding to condemn a right of way, and the obligation was given to secure to them such damages as might be assessed to them severally in the proceedings for condemnation. The court held the instrument sued upon to be a several one, upon which each one of the obligees might severally sue, yet no one of them had a right to recover upon it more than his relative and respective share of the penalty. The court accordingly sustained the demurrers to the declarations, and required them to be so amended as to show what the relative and respective interest of each plaintiff would be. In those cases the court did not decide that the obligees could not me jointly, but decided that they might severally sue. The authority referred to by the court in its opinion in the two cases just referred to, is the case of Farni vs. Tesson, 1 Black, 309. This was a case of error to the circuit court of the United States for the northern district of Illinois. Tesson and Dungen recovered a judgment against Bartcum and Carry, in the circuit court of Peoria county, Illinois, in 1857, for 8,000 dollars, on which an execution issued which was levied on the property of the defendants. Bartcum and Carry obtained an injunction restraining further proceedings under the judgment. Bartcum and Carry executed their bond, with C. and F. Farni as their sureties, in the penal sum of 16,000 dollars, payable to Tesson and Dungen, Tuber, Garesehe, and Miner, with the usual conditions of an injunction bond. After the injunction was dissolved, Tes-son brought suit on the bond in his own name, as surviving partner of the firm of Tesson and Dungen, — omitting as plaintiffs the other three obligees to whom the bond had been given — against C. and P. Farni, two of the four obli-gors who executed it.

The plaintiff, Tesson, averred in his declaration that he was the only person interested in the judgment enjoined; that Miner, one of the obligees, was the sheriff' who held the execution enjoined, and that the other obligees were merely the agents or trustees of Tesson.

There was a demurrer to the declaration and some amendments made to it, but as to the parties it was not changed, and in the supreme court was considered as on demurrer to tbe declaration. Justice Grier, in delivering the opinion of the court, said: “In an action of debt on bond the demand is for the penalty. The condition of the bond is no part of the obligation. It is true the judgment for the penalty will be released on performance of the condition annexed to it. The plaintiff may declare on it as single, and defendant would then have to pray oyer of the deed and have the condition put on the record, so that he could plead a' performance of it, or any other defence founded on it.” * * * “If, by the condition, the money to be recovered be not for the joint benefit of all, the suggestion of that fact cannot alter the obligation; but will show only that, though all the parties to it should join in the suit and show a legal title to recover, the judgment will be for the use of the party named in the condition, and equitably entitled to the money.” * * * “ "When there are several covenants by the obligors, as for instance, to pay 300 dollars to A and B, viz: to A, 100 dollars, and B, 200 dollars, no doubt each may sue alone on his several covenant. The true rule as stated by Baron Parke is, that £ a covenant may be construed to be joint or several according to the interest of the parties appearing upon the face of the obligation, if the words are capable of such construction; but it will not be construed to be several by reason of several interests, if it be expressly joint.’ In this case the covenant is joint, and will admit of no construction. The condition annexed cannot affect the plain words of the obligation.” The demurrer was held well taken, and the judgment of the court below reversed. This case is in principle precisely like the case under consideration, and clearly shows that there is nothing in the first cause of error assigned.

The case of Farni vs. Tesson, is fully sustained by the cases of Sweigart vs. Berk and others, 8 S. and R., 308; Pierce vs. Hitchcock, 2 Comstock, 388; Strange vs. Floyd, 9 Gratt., 474; Sims and Hollis vs. Harris, 8 B. Monroe, 55; as well as by many others. Nor is there any conflict between these eases and those in 33 Ill. Rep., because in those cases tbe paper sued on was construed to be an obligation to the obligees severally.

The second cause of error assigned is that, the court erred in giving greater damages for breach of condition of bond, with collateral condition, than was claimed in the writ or declaration.

It has been long well settled, that in debt upon a bond, with collateral condition, damages may be assessed beyond those laid in the declaration, if the penalty is sufficient to cover them. Payne vs. Ellzy, 2 Wash., 143; Johnson vs. Merriwether, 3 Call, 523; Sims and Hollis vs. Harris, 8 B. Monroe, 55.

The third and last cause of error assigned is, that the court erred in not ascertaining the damages sustained or sums to be paid, by reason of the breaches assigned, as required by law. The judgment was rendered by the court, ■ — a jury having been waived, — for the penalty of the bond, to be discharged by the payment of a specific sum, with interest and costs. While this judgment may not be a formal ascertaining the damages for the breaches of the condition of the bond charged in the declaration, according to the statute, it is substantially so, and should be held as in full satisfaction and discharge of all the breaches alleged in the declaration, and a bar to any other or further recovery for the same breaches.

The judgment complained of will have to be affirmed, with damages and costs to the defendants in error.

The other judges concurred,

Judgment aeeirmed.