May v. Alabama National Bank

PER CURIAM. The demurrer to the complaint should have been sustained. The bond sued on was á' common law and not a statutory obligation. It is a familiar principle that a surety, though bound equally with the principal, stands in a purely voluntary and gratuitous relation, and that the extent, of the liability incurred by him is that expressed, or necessarily included in the words used in the contract or obligation. To the extent, and in the manner stated in the contract,' he is bound and no further. It must be strictly construed according to the letter of the undertaking. — City Council of Montgomery v. Hughes, 65 Ala. 204; Anderson v. Bellinger, 87 Ala. 336; Crescent Brewery Co. v. Handley, 90 Ala. 486. The consideration of the bond sued on as expressed in its recitals was, that the bank was willling to turn over certain goods to Gauger & Co. ‘‘upon their indemnifying [514] said Alabama National Bank against any loss by reason of the turning over of said goods, and to hold the said bank harmless against any liability by reason of certain garnishments that have been served on said bank, touching the possession and delivery of said goods;” and its condition, in conformity to its recited consideration was, that “if the said John A. Gauger & Co. shall hold said bank harmless as above stated, and pay any sum or sums for which judgment may be rendered against said bank growing out of the turning over of said goods to John A. Gauger & Co., and growing ouc o.f the said garnishments as above stated with regard to its possession of said goods and relinquishing said possession, then this obligation to be void,” &c. In the alleged breach of the condition of the bond on which a claim of damages is predicated, it is not averred that any judgment was ever rendered against the bank, or any liability enforced against it by any party or parties by reason of or growing out of the turning over of said goods to said Gauger & Co. So far as appears, the bank remains harmless on this account, and the garnishments referred to have never been made effectual against it. On the other hand the recitals of the bond are to the effect, that in the proceeding against the bank, on a contest of its answer, the bank prevailed. It is claimed, however, as a breach of the condition of said bond, that the bank, pursued by one of its garnishors, “incurred, by reason of the delivery of the goods as mentioned in the bond, attorney’s fees and expenses to the extent of one hundred dollars.” The attorney’s fee and other costs are not within the letter of the bond, and cannot by any fair interpretation of its language be included therein. If the bank had desired to be protected against such damages it should have been so stipulated in the bond. According to its answer, the bank,had no interest in the goods. Their turning them over to Gauger & Co., pending the garnishment suit, was for the latter’s benefit, and they were the parties really interested. Admitting that they were liable to the bank in some appropriate form of action, for expenses of that litigation, incurred by the bank in' their behalf, it would not follow that the sureties In this bond are liable without provisions in the bond to make them [515] so. As it is, they are mere strangers to any such liability. The analogy between statutory indemnifying and attachment bonds, and a bond of the character of that sued on fails, since the conditions of such bonds are entirely different from the condition of this bond. Keversed and remanded. Haralson, J., not sitting.