Church v. Campbell

The opinion of the court was delivered by Dunbar, C. J. This was an action for damages on an attachment bond. The fourth allegation of the complaint is as follows: “That after filing said affidavit and before said attachment issued, said John G. Campbell & Co., as required by law, gave an attachment bond for the protection of this plaintiff, with defendants J. L. Worthley and W. TT. Yan Lehn as sureties, in the words and figui-es following:” . . . There is no allegation in the complaint that the damages claimed to have been sustained have not been paid. At the close of plaintiff’s case the defendants moved for a non-suit on the grounds — (1) That the complaint failed to state a cause of action against the defendants; (2) that the testimony of plaintiff’s own witness shows that no damages had resulted from the levy of the attachment; (3) that the plaintiff has wholly failed to show that there was no probable cause for the defendant’s believing the [548] ground upon which the attachment was issued; (4) that the plaintiff wholly failed to show that the damages incurred have not been paid. This motion was sustained by the court, and judgment entered for the defendants, and the cause brought here upon the alleged error of the court in sustaining the motion for a non-suit. : The respondents contend that the allegation that Campbell & Co. gave a bond does not mean that they executed the same, but simply that they procured a bond, and that there is no allegation that the sureties executed the bond. This contention, we think, will have to be sustained under' the rulings of this court in Seattle Crockery Co. v. Haley, 6 Wash. 302 (33 Pac. Rep. 650). The objection that there is no allegation in the complaint that the’damages alleged to have been sustained by reason of the attachment have not been paid, and no proof on that proposition, we think is also well taken, and warranted the court in granting the motion for non-suit. It is the breach of a covenant that is the basis of an action on a covenant, and. the breach of this covenant was the non-payment of the damages incui’red by the plaintiff. That was the condition of the obligation, viz., that they should pay all costs and all damages which he might sustain by reason of the attachment. If the damages had been sustained and had been paid, there would have been no ground for action; and if a breach has been made by non-payment of the damages, thex*e must be an allegation of this breach before a recovery can be had. The cases cited by appellaxit in answer to this propositioxx are not in point. They simply sustain the general proposition that payment is a matter of defense, but ax’e not applicable to the breaches of covenants of this kind. Drake on Attachment (7th ed.), 168, in discussing attachment bonds, lays down the rule as follows: "A declaration which fails to aver the non-payment of the damages sustained is bad on demurrer. ’ ’ [549] And the cases cited by that author fully sustain the text. We have been unable to find any authority to the contrary. So far as the second and third grounds alleged in support of the motion for non-suit are concerned, we think there is testimony which was competent to go to the jury, and sustain a verdict; but, for the reasons alleged above, the judgment will be affirmed. Scott, Stiles and Anders, JJ., concur. Hoyt, J., dissents.