Rauh v. Waterman

Comstock, J.

On May 23, 1893, Joseph S. Finch & Co., merchants, replevied four barrels of whisky from the appellants and the Indianapolis Warehouse Company, and the same were delivered to them upon the execution of the following undertaking: “We undertake to and with the defendants that the plaintiffs will return the property taken from them by virtue of the writ of replevin in the above entitled cause if a return thereof be adjudged by the court in said action, and that plaintiffs will pay to defendants all such sums of money as may be recovered against them in said action.” Signed by appellee Christian E. H. Waterman, against whom this action is brought. On November 4, 1893, the replevin proceedings were dismissed by plaintiffs, but the whisky was not returned. This action is brought upon the undertaking signed by Waterman to recover from him the value of the whisky. There was an answer in two paragraphs, the first being a general denial. The second alleges that at the times mentioned in the complaint, Joseph S. Finch & Co. were the owners of and entitled to the whisky in question. At the request of appellees, the court made a special finding of facts and stated conclusions of law thereon, on which findings and conclusions of law judgment was rendered in favor of defendants, appellees here, for costs.

The errors assigned, are that the court erred in its conclusions of law and in overruling appellants’ motion for a new trial. The alleged breach of the undertaking is that the plaintiffs in said action of replevin dismissed the same without returning said property, or paying any sum of money realized from the sale of said property to these plaintiffs, or to any other of the defendants in said action. The special findings show that the action of replevin was dismissed by the plaintiffs therein, and costs therein fully paid by them, without prejudice, and without any trial of said cause upon the merits, and the title to, ownership, and right of possession of said four barrels of whisky was in no way determined in said cause.

The undertaking is defective in that it does not provide, as required by §1290 Burns 1901, §1270 Homer 1901, that the plaintiffs will prosecute their action with effect. Section 1235 Burns 1901, §1221 Horner 1901, is intended to cure defects of the character here presented. It is as follows: “No official bond entered into by any officer, nor any bond, recognizance, or written undertaking taken by any officer in the discharge of the duties of his office, shall be void for want of form or substance or recital or condition, nor the principal or surety be discharged; but the principal and surety shall be bound by such bond, recognizance, or written undertaking "to the .full extent contemplated by the law requiring the same, and the sureties to the amount specified in the bond or recognizance. In all actions on a defective bond, recognizance or written undertaking, the plaintiff or relator may suggest the defect in his complaint, and recover to the same extent as if such bond, recognizance, or written undertaking were perfect in all respects.”

Section 1290 Burns 1901, not only contemplates, but requires, that the party giving the bond shall obligate himself that the plaintiff will prosecute his action with effect. Appellants, plaintiffs below, as authorized by §1235, supra, suggest in their complaint the defect, so that the undertaking is to be considered as containing the stipulation to prosecute the action with effect. Hawes v. Pritchard, 71 Ind. 166, and authorities cited. When, therefore, plaintiffs dismissed their action, there was a breach of the bond for which the bondsman became liable. Peffley v. Kenrick, 4 Ind. App. 510, and authorities cited.

As to the reasons for a new trial, viz., that the decision is not sustained by sufficient evidence; is contrary to law; and that the part of the fifth section of the special finding of facts, finding fraud upon the part of Schwabacher, which misled the vendors of the whisky, is not sustained by sufficient evidence, we can not agree with the learned counsel for appellants. Courts are permitted, in determining the weight of testimony, to draw reasonable inferences from the facts found. The findings are sustained by sufficient evidence. The findings hold that there was a breach of the bond in failing to prosecute the action of replevin with effect, yet, in view of the other findings of the court, appellants were entitled to nominal damages only by reason of such breach. A failure to assess nominal damages affords no ground for a reversal of a judgment in this court. Smith v. Parker, 148 Ind. 127, and authorities cited.

Judgment affirmed.