Copeland & Brantley v. Cunningham

STONE, J. Burton v. Smith, 49 Ala. 293, was a suit on an attachment bond; and it was ruled in that case, that the plaintiff was entitled to recover reasonable attorney’s fees for bringing the suit on the bond. No authorities holding the same doctrine were cited in support of the ruling. The condition, or defeasance of an attachment bond, is to “prosecute the attachment to effect, and pay the defendant all such damages as he may sustain from the wrongful or vexatious suing out of such attachment.” — Code of 1876, § 3256. A suit on such bond is an ordinary suit on a contract, for its breach, and must be governed by the rules applicable to such ordinary suits. The condition of the bond does not provide for the payment of such attorney’s fees ; and we know of no principle of construction, by which contracts like this can be enlarged beyond their terms. It was the right and privilege of the defendants, appellants here, to pay the damages caused by the wrongful or vexatious suing out of the attachment, and thus prevent a suit. The present action was brought by Cunningham, in his own interest, and to recover moneys which he alleged were wrongfully withheld from him. We have no statute, or principle of law, which authorizes the recovery of attorney’s fees in such an action as this. They are not damages proximately caused by suing out the attachment, and must stand on the same principles as other actions brought for breaches of covenants, or other executory contracts. — Harbinson v. Harrell, 19 Ala. 753; Pounds v. Hamner, 57 Ala. 342; Garrett v. Yoe, 17 Ala. 74; Miller v. Garrett, 35 Ala. 96; Dunn v. Davis, 37 Ala. 95. The demurrer to this assignment was rightly taken, and should have been sustained. — Botts v. Bridges, 4 Por. 274; Taylor v. Pope, [397] 8 Ala. 190; Wilson v. Cantrell, 19 Ala. 642; Governor v. Wiley, 14 Ala. 172; Williamson v. McArthur, 37 Ala. 298; Harmon v. Thompson, 2 How. Miss. 808; Martin v. Williams, 13 Johns. 264; McCay v. Shoots, 2 Litt. 372; Domsland v. Thompson, 2 Blackst. (Sir Win.) 910. ■ Other points will arise when this case returns to the court below for another trial. Among them, the fact that the bond is blank in its penalty. The present suit being on the bond, the plaintiff must recover on it, or not at all. He sues on an obligation or promise to pay blank dollars. If this be construed to mean ‘dollars’ in the plural — more than one — it is wholly indefinite as to the number, and we have nothing by which to determine the sum intended. If it be replied, that the defendants bound themselves to prosecute the action to effect, and to pay all such damages as the defendant might sustain from the wrongful or vexatious suing out of the attachment ; the answer is, this is not the obligatory, but the defeasance part of the bond. It was the contingency, on which the obligors were not to pay money, which, but for the condition or defeasance, they had bound themselves by their contract to pay. Now, the contract declared on bound the bondsmen to pay no ascertained sum, and that promise was to be void, if they prosecuted their attachment to effect, &g. We hold, that the bond, which is the foundation of the suit, was a promise to pay nothing, and therefore that it could not be the foundation of a recovery. We will not say an action on the case could not have been maintained. — McKellar v. Couch, 34 Ala. 336. The defect in the bond could not be supplied by oral proof, in an action at law on the bond. — Garrow v. Carpenter, 1 Porter, 359; Hamner v. Cobb, 2 Stew. & Por. 383; Phil. Ev., Cow. & Hill’s notes, 1st ed., 1471-3; Efner v. Shaw, 2 Wend. 567; Sessions v. Barfield, 2 Bay, 94; Mead v. Steger, 5 Por. 498; Sanford v. Howard, 29 Ala. 684. There are other questions, but some of them are not so presented as that we can consider them. The foregoing will furnish a guide for another trial. We overrule the case of Burton v. Smith, supra. Reversed and remanded.