Twentyman v. Nichol

McBRIDE, J. Counsel for defendant with much zeal and ability argued that there is a misjoinder of causes of action in that a cause of action ex delicto against Nichol is joined with a cause of action ex contractu against the surety company. We do not so construe the statute or the bond. The company, in effect, undertakes that the defendant Nichol shall not commit certain fraudulent acts and dishonesties, and that, if he does, it will pay to the injured persons damages not to exceed the sum of $1,000. This was an entire contract in which the principal joined, both executing the bond jointly and severally. The promise was not illegal and was one the state had a right to exact. In the words of an old English case it was said: “A man may bind himself for a consideration that it shall rain tomorrow or that he *584 will pay damages.” The right of action is statutory and the procedure to enforce it to a great extent sui generis. There is no good reason why the injured parties should be required first to sue Nichols for damages for his alleged fraud, and, after obtaining judgment, then to sue the surety company to enforce the bond. The law abhors a multiplicity of suits and here the whole question can be settled in one action. A bond similar in character, although not executed by the persons charged as delinquents, was considered in the case of Askay v. Maloney, 85 Or. 333 (166 Pac. 29), and it was there held that a surety company was properly joined in an action against the actual wrongdoers. In a subsequent appeal of the same case, 92 Or. 566, 569 (179 Pac. 899), the bond sued on was in evidence and is thus described in the opinion: “The bond given recited that the ordinance of the city of Portland requires each member of the police force thereof to give a bond; that the Southwestern Surety Company has by bids made to the city signified its willingness to issue bonds, and that certain employees have been duly appointed members of the police force, and then undertakes to reimburse the city of Portland or any person, ‘for any loss sustained by reason of the failure of any persons named in the schedule hereto attached, or additions thereto, as hereinbefore provided, * * to faithfully discharge all the duties of their respective offices according to the true intent and meaning of said ordinances, and failure to make payment for any and all damages, that may be adjudged against them by any tribunal for the illegal arrest, imprisonment or injury by him, to any person,’ for the year ending February 2, 1915. The individual detectives did not sign this undertaking and its terms do not indicate *585 that it was intended they should subscribe it. It was executed by the insurance company alone, while the names of the individual defendants are said to be recited in the schedule attached to the instrument. ’ ’ It was held that, as the bond only undertook to reimburse the city or any person, et cetera, and make good any damages which might be adjudged, et cetera, it created a collateral liability only and that the surety was not liable in the first instance. The court in that ease makes a distinction between a bond executed by a wrongdoer jointly with his surety and the bond which was in evidence in the case it was then considering, which was a bond not in fact executed by them but by the surety company only. Mr. Justice Burnett in Askay v. Maloney, 92 Or. 566, 574 (179 Pac. 899, 902), said: “The police officers had not executed any bond. For all that appears in the complaint they may have been utterly ignorant of its existence. Their only liability, as disclosed by the plaintiff’s pleading, is for tort, and breach of the contract is all that can be attributed to the company. The court was in error in not requiring an election.” The distinction between the case referred to and the case at bar is plain. Here both defendants joined in the execution of the bond. In Askay v. Maloney, supra, the wrongdoing defendants never joined in the bond and, as Mr. Justice Burnett remarked, may have been entirely ignorant of its existence. We see no ground for holding that the complaint fails to state facts sufficient to constitute a cause of action. As before remarked, the action is statutory and the allegations comply with the requirements of the statute. *586 It was not necessary for plaintiffs to plead that they had demanded of the defendant a restoration of their alleged ill-gotten gains. The action was a sufficient demand. The evidence was exceedingly contradictory, and, owing to constant technical objections by counsel on both sides, was elicited on a fragmentary condition which rendered it exceedingly difficult for the jury to comprehend clearly or appaise it. The defendant Nichol claimed that the purchase or trade was negotiated by him for his wife and there is some testimony tending to support that contention, but the jury evidently considered this a mere ruse on his part to cover up his own trickery and considered him as the actual beneficiary. We think there was evidence sufficient to justify the verdict, although were the writer a trier of the facts he might be inclined to come to a different conclusion. The case was fairly tried and the issues fairly stated by the court, and we are not inclined to be critical when we consider the confused manner in which the case was put in. After much time spent in considering the case, which was very ably presented here, we are of the opinion that the judgment should, be affirmed and it is so ordered. Affirmed. Band, C. J., and Coshow and Bossman, JJ., concur.