Mutual Benefit Insurance v. Brown

80 Mo. App. 459, 1899 Mo. App. LEXIS 189

• Court: Missouri Court of Appeals
• Decided: May 8, 1899
• Status: Published

Opinion

ELLISON, J.

This is an action on a bond for $1,500. The judgment was for plaintiff.

It appears that Erasnus D. Browne in his lifetime together with Jennie G: Browne who is now administratrix of his estate executed a note for $24,000 with interest to the Mutual Benefit Life Insurance Oompany. And to seciire the same they executed a deed of trust on certain real-estate. That afterwards the trustee in said deed of trust sold the real estate therein described and defendant Jennie G. Browne elected to undertake to redeem said property within one year as is provided by sections 7079, 7080, Eevised Statutes 1889; and to that end she, in connection with the other defendants as sureties, executed the bond in suit agreeing to pay $1,500 to the insurance company; conditioned to be void upon payment of interest to accrue on said debt and all damages and waste done to or upon the premises.

The interest was not paid and this suit was instituted in which the petition declares on the facts. But it fails to assign breaches and to ask judgment for the penalty of the bond; and it is upon this failure that defendants base their principal point.

Bonds: pleading assignment of breaches: judgment: execution. It is a rule of law that in penal bonds the petition should assign the specific breaches for which the action is brought; section 866, Eevised Statutes 1889; and that the judgment should be for the full penalty of the bond with execution for the' damages assessed in no ease to exceed the penalty. Sec. 869; Showles v. Freeman, 81 Mo. 540; Farrar v. Christy, 24 Mo. 474; State ex rel. v. Sandusky, 46 Mo. 377.

—: redeeming land at trsutee's sale: pleading: interest. But is the action here of this nature ? The statute, section 866, is as follows: “When an action shall be prosecuted in any court upon any bond for the breach of any condition other than the payment of money, or shall be prosecuted for any penal sum for the nonperformance of any covenant or written agreement, the plaintiff, in his petition, shall assign the specific breaches for which the action is brought.” It will be noticed that breaches are to be assigned for the breach of any condition other than the payment of money. If the action is for the breach of a condition to pay a sum of money, there need be no other allegation in this respect than that the money was not paid. And there need not be a judgment rendered for the full penalty of the bond, as such, and an execution for the damages assessed, as provided by section 869. Eor in such case there is a direct promise to pay a specific sum of money and there is no necessity for an inquiry of damages.

In this case the bond is for two purposes and on two conditions. One the payment of money as interest; and the other to pay all damages by way of waste, etc. The latter is not declared upon; no breach of that condition is alleged and no damages asked on account thereof. Therefore the fact that the bond contains a condition, or agreement not to commit waste, and the sum of $1,500 may in that respect be considered a penal sum, yet the breach here complained of is for the “nonpayment of money,” as before explained. We think, therefore, the trial court took the correct view of the case in the respect which we have discussed as well as in the following.

■ The judgment was not only for the amount of the interest secured by the bond (which at least equalled the penalty'of the bond) but for six per cent on that sum after the interest became due and was not paid. Under the peculiar provisions of the bond we think this was proper. Eor while no more than the penalty of a bond can be recovered from the surety, yet we regard this bond as out of the ordinary. It is apparent that its object is to secure the payment of the interest which would accrue on the note secured by the deed of trust. It states specifically, that the object is to make provision as authorized by statute for the redemption of property sold under the deed of trust, and we think it was giving it a proper construction to add six per cent to that sum after it was due. Sec. 5972.

It would perhaps have simplified matters if a simple agreement had been taken to pay the interest and also all damages and thus have avoided the complications of a formal bond with penal and nonpenal conditions. But we believe we have given and that the trial court gave the proper construction to it as it was intended and understood by the parties.

The judgment is affirmed.

All concur.