Offterdinger v. Ford

24 S.E. 246, 92 Va. 636, 1896 Va. LEXIS 26

• Court: Supreme Court of Virginia
• Decided: February 20, 1896
• Status: Published

Opinion

Buchanan, J.,

delivered the opinion of the court.

The demurrer to the declaration in this case is based upon two grounds.

First. That the damages claimed must have been awarded against the plaintiffs in the attachment proceedings in an independent action against them before the sureties in the attachment bond could be called upon to answer in damages.

Second. That the declaration claims damages which resulted not only from suing out the attachment, but also for “the sale made and proceedings had under color of the attachment.”

The condition of the bond sued on provides, first, that the obligors therein shall pay all costs and damages which may be awarded against the plaintiff in the attachment, and, secondly, that they shall pay all damages sustained by any person by reason of the plaintiffs having sued it out.

The surety in the bond stands upon the precise terms of his contract, and his -liability cannot be extended beyond its terms. Upon the first undertaking in the bond no action could be maintained against the surety until the costs and damages had been awarded against the plaintiff in the attachment.

There was no breach of that condition in the bond until the costs and damages had been ascertained and awarded, and default made in their payment. The surety has not undertaken to pay—in fact, he does not know what he has to pay— until the costs and damages have been awarded. There could be no proper assignment of the breach of such condition until the liability of the surety had accrued and the condition had been broken. It would be an anomaly in pleading if an action could be brought before the breach had occurred.

The contention that the damages will be awarded in the action upon the bond, and the fact thus ascertained, upon which the surety becomes liable, cannot be sustained. The right to recover depended upon facts in existence, and upon default made prior to the institution of the action on the bond, and not upon facts ascertained and default made at the end of the action.

"When it is remembered that under sec. 32, ch. 148, Code of 1873, (sec. 2990, Code of 1887,) it is not necessary that the plaintiff in the attachment should be a party to the attachment bond, it more clearly appears that it was never contemplated that the costs and damages which the obligors in the bond undertook to pay, when awarded, should be ascertained and awarded in an action on the bond against them.

The damages ascertained and awarded in such action would be awarded, not against the plaintiff in the attachment, where he is a party to the attachment bond, but against him and his surety on that bond. And where he was not a party to the bond they would not be awarded against him at all, but against the bondsmen only. It would be a strange misuse of language to say, in either case, that the damages awarded against the obligors in the bond were damages awarded against the plaintiff in the attachment. 2 High on Injunctions, sec. 1640 ; Sledge v. Lee, 19 Ga. 411; McLuckie, &c. v. Williams, 68 Md. 262; 1 Wade on Attachments, sec. 298; Tarpey v. Shillenburger, 10 Cal. 390.

But whilst the plaintiff in this case had no right to bring an action upon that provision of the bond by which the obli gors therein undertook to pay all costs and damages which might be awarded against the plaintiff in the attachment, he had the right to maintain his action on the other provision in it, by which they undertook to pay all costs and damages which might be sustained by any person by reason of the suing out of the attachment.

The words “ any person ” are broad enough to include the defendant in the attachment, and if it had been intended to exclude him. from the benefit of that provision, and to confine him exclusively to the other provision of the bond for indemnity, the ordinary and natural mode of expression would have been to say “ any other person,” and not “ any person.”

Hot only does the language used include the defendant, but there are strong reasons why he should have been included. Under section 30, ch. 148, Code of 1873, it was provided that the defendant might make defence in the attachment suit on the gi’ound that it was sued out without sufficient cause, and, if the court or jury found that the defence was well founded, judgment could be entered against the plaintiff in favor of the defendant for the damages sustained. And when the defendant had obtained such a judgment, if it were not paid, he could bring his action upon the attachment bond, and recover on that provision of the bond by which the obligors in it had undertaken to pay all costs and damages which might be awarded against the plaintiff in the attachment. But where the defendant in the attachment could not make defence, as was frequently the case, because he had no actual notice of the proceedings until it was too late to make defence, what is his remedy if he has no right to sue upon the bond ? He will be compelled to resort to his action on the case for damages. In such action he cannot recover, however great his damages may be, merely on the ground that the attachment was sued out without sufficient cause; but he must allege and prove that it was sued out with malice and without probable cause. If he be successful in his action on the case, and gets judgment, it is by no means clear that the sureties on the attachment bond are liable for anything bnt the actual damages which he has suffered by reason of suing out the attachment.

If he prove in his action on the case that the attachment was sued out without sufficient cause, and that he had sustained great damages, but fails to prove that it was sued out with malice and without probable cause, he can recover nothing in that action, and must pay the costs of his failure.

The result of suing out the attachment without sufficient cause may have been to ruin him financially. He has no remedy at common law, because he cannot prove malice and want of probable cause. He has no remedy on the bond, unless included in the words “ any person,” for damages have not been, nor is there any proceeding by which they can be, awarded against the plaintiff so as to bring him within the condition of the bond.

The result, therefore, of construing-the words “ any person ” to mean any person other than the defendant in the attachment proceeding would be practically'to destroy the value of a statute passed for his protection, and to render worthless as to him a bond required for his indemnity. This is especially true under the Code of 1887, from which is omitted sec. 30 of ch. 148 of the Code of 1873, which gave them the right to make defence in the attachment proceeding, on the ground that the attachment was sued out without sufficient cause, and have his damages awarded against the plaintiff.

Again, there is no good reason why the defendant in the attachment proceeding should be driven to an independent action against the attachment creditor for suing out the attachment without sufficient cause, when the damages can be as readily ascertained in the action on the bond, to which the surety will be a party and in which he can make all legal defences.

By allowing an action to be brought on the bond in the first instance unnecessary, dilatory, and vexatious litigation is avoided, and the whole controversy is litigated and settled in a single action, as common sense would seem to dictate.

We are satisfied that the defendant in the attachment is within both the letter and the spirit of the statute, and is entitled to sue upon the bond. See Judge Mon cure’s opinion in Davis v. Commonwealth, for, &c., 13 Gratt., at pages 145 to 149.

The other ground of error, as stated above, is that the declaration claims damages not only as the result of the suing out of the attachment, but for the “ sale aforesaid and the proceedings under color thereof.”

This ground admits that the plaintiff’s declaration is sufficient in so far as it avers that the attachment was sued out without sufficient cause, and claims damages therefor.

Even if the plaintiff had no right to recover damages for the other injuries complained of in the declaration (and upon that question we express no opinion), such averments would furnish no ground for sustaining the demurrer. They would be mere surplusage, and could not render insufficient a declaration which is admittedly good without them. Surplusage is not a subject for demurrer, the maxim being that utile jper inutile non vitiatur. Steph. Pl. 424 ; 4 Minor’s Inst. 1264 (3d ed.); 5 Rob. Pr. 306.

The demurrer was properly overruled.

The defendant’s Plea No. 3 and their Instruction FTo. 1 involve the same question, and will be considered together. The proposition of law contained in them is that it was the duty of the plaintiff to prove that the attachment was sued out without sufficient cause before they were entitled to recover.

This, we think, is a correct statement of the law. It is true that the form of the- bond as prescribed by the statute does not in terms provide that the costs and damages which may be awarded or sustained by reason of suing out the attachment shall be paid only in the event that it is sued out without sufficient cause. But it could not have been intended that where the attachment was sued out with good cause, and afterwards quashed or abated for the failure of the officer to perform his duty, as in' this case, that the sureties on the bond should be liable for damages. They ought not to be held responsible either for the failure of the officer to perform his duty, or for a trespass committed by him.

The effect of the undertaking of the obligors in the bond, as was said by Judge Moncure in Davis v. Commonwealth, 13 Gratt. 145, is that the attachment is properly sued out, and that the plaintiff’s claim is well founded.

This seems to have been the view of the plaintiff’s counsel when his declaration was framed and filed, as it, following approved forms, contains the averment that “ the attachment was sued out without sufficient cause.” 4 Minor’s Inst. 1657-8 (3d ed.); 4 Rob. Pr. 148.

By the defendants’ Instruction Mo. 2, which was objected to, and the giving of which is assigned as error here, the court instructed the jury that the lessor of property has the right to sue out an attachment for rent not due, but to become due within a year, when the lessee intends to remove, or is removing, or has within thirty days removed his effects from the leased premises, where there is not, or he believes that unless an attachment issues there will not be, left on the leased premises property liable to distress sufficient to satisfy the rent to so become due and payable.

It is insisted that section 4 of chapter 148 of the Code of 1873, under which the attachment was sued out, was never intended to prevent a lessee, in the regular course of business, from removing his effects from the leased premises, and to so hold would seriously interfere with, if not ruin, many kinds of business conducted on leased property. This may be true, but the statute makes no exception in favor of any one. It provides that the lessor has the right to sue out his attachment whenever the lessee intends to remove, is removing, or has removed, within thirty days, his effects from the leased premises, so that there is not, or he believes unless an attachment issues there will not be, left on such premises property liable to distress sufficient to satisfy the rent to become due and payable within one year.

The statute has been in force in its present form at least since the adoption of the Code of 1849, and the construction placed upon it by the trial court has been the construction generally given it, it is believed.

During the long period it has been in force, now nearly fifty years, the provision under consideration does not seem to have been amended. This fact alone would seem to show that, in its practical effect and workings, it has accomplished the object for which it was passed, and has met with the approval of the people of the State and their law-makers. But be that as it may, the language of the statute is too plain to admit of any other construction than that which was given it by the trial court.

. The defendant’s Instruction Ho. 5, the giving of which is also assigned as error, informed the jury if they believed from the evidence that there was a deed of trust on the property attached, given by the- plaintiff after it was carried on the leased premises, and such trustee intended to remove said property from the premises by sale or otherwise, not leaving on the leased premises sufficient property to satisfy one year’s rent, and without securing to the lessor one year’s rent, then such intention of the trustee was of itself sufficient cause for suing out the attachment.

The trustee in the deed of trust given by the lessee to secure other creditors had no right to remove from the'leased premises property which the lessee himself could not remove without giving the lessor the right to sue out an attachment. The trustee, at least as between the lessor and the lessee, was merely the agent of the latter, and could do no act to the prejudice of the former which his principal could not do. Before he had the right to remove the property from the leased premises it was his duty to secure the payment of the rent to the lessor for a period not exceeding one year, as is required by sec. 12, ch. 134, Code of 1873 (sec. 2792, Code 1887). Until he complied with the terms of that statute he had no right to remove the property. The instruction, we think, under the facts of this case, correctly stated the law.

The instructions which the plaintiff requested the court to give were properly rejected. They were in conflict with the instructions which the court did give, at the instance of the defendants, and which, as we have before seen, correctly laid down the law by which the jury were to be governed in reaching their verdict.

Upon the whole case, we are of opinion that the judgment of the Circuit Court should be affirmed.

Affirmed.