Pinney v. Hershfield

Knowles, J. This is an aetion on an attachment undertaking, to recover damages occasioned the plaintiff on account of the wrongful suing out of said writ. It appears that the appellants appeal to this court from the order overruling the motion for a new trial, and from the judgment of the court below. The respondent urges that there is not such a specification of errors in the statement on a motion for a new trial as will justify this court in considering it. The statutes of this Territory provide that a statement “shall-state specifically the particular errors or grounds upon which he intends to rely on the appeal, and shall contain so much of the evidence as may be necessary to explain the particular errors or grounds specified and no more.” See Stat. of 1867, p. 199. : We do not propose to laydown any rules which shall prescribe the manner in wMch these errors or grounds, upon which the appellant will rely for a reversal, must appear. So that they are pointed out specifically, in some intelligible manner, is all that we require. The statement, however, under consideration we do not think does this, and, hence, hold that we cannot consider the same. The appeal from the judgment brings to this court the judgment roll. The undertaking, upon which this action was brought, reads as follows: [370] “Know all men by these presents: That we, , as sureties for James W. Whitlatch, do undertake in the sum of five thousand four hundred dollars, that if the defendant in the action of James W. Whitlatch against George M. Pinney, this day commenced in the district court, third judicial district of the Territory of Montana, sitting in and for Lewis and Clarke county, shall recover judgment, that the said Whitlatch will pay all costs that may be awarded said Pinney, and all damages which he may sustain by reason of the attachment in said action, not exceeding the sum aforesaid. “Witness our hands and seals this day of June, 1869. “L. H. HERSHPIELP. [l. s.] “ALEX. H. BEATTIE.” [l. s.] The complaint in this action does not state that the said Whitlatch had not paid, or refused to pay, the costs and damages sustained by the plaintiff. The appellants demurred to this complaint for this reason, assigning that the complaint did not state facts sufficient to constitute a cause of action. Undoubtedly the appellants, in this contract, made themselves liable to pay the costs and damages sustained by the respondent, in case the said Whitlatch did not. Their contract is in the nature of a guaranty. They do not undertake that they will pay all costs and damages, sustained by respondent, themselves, but that Whitlatch will pay them. A demand on the principal debtor, and a failure on his part to do that which he is bound to do, are requisite to found any claim against the guarantor. 2 Pars, on Cont. 29. In the case of Tarpey v. Shillenberger et al., 10 Cal. 390, Baldwin, J., says: “The condition of the undertaking is, that the plaintiffs in the suit for whom the sureties undertook should pay all damages and costs that should be awarded against the plaintiffs by virtue of the issuing of said injunction by any competent court. No sufficient breach is averred, since it is not alleged that any damages were so awarded. The sureties are entitled to stand on the [371] precise terms of the contract, and we know of no way of extending their liability beyond the stipulation to which they have bound themselves.” This case shows that the complaint must allege sufficient to manifest that the condition upon which parties to an undertaking were to become liable has transpired. We can see no difference between this, where parties were to become responsible in the event that their principal did not perform his obligation, and in the case where persons were to become liable on the condition that another person did not perform his duty as an officer. In such a case the authorities are abundant, to the effect that the complaint must show that the officer has not performed his duty. This failure is the breach of their contract, and must be alleged. We hold, therefore, that it was necessary for the respondent to have alleged, in his complaint, that the said Whit-latch had not paid said damages; and, hence, the court below erred in overruling the demurrer of appellants. For these reasons the judgment of the court below is reversed, and the cause remanded. Exceptions sustained!.