Wood's Ex'r. v. Fulton & Starck

Earuu, J. delivered the opinion of the court. The action instituted in this case in the court below, is an action of debt on an appeal bond, against the appellant as surety. In the year 1811, one John M. Dennison mortgaged certain leasehold property in the city of Baltimore to Starck and Fulton, to secure them against any risk they might run by endorsing promissory notes in bank for Dennison 4’ Savin, to the supposed amount of about $3000. There was a proceeding in chancery on this mortgage, in 1814, against Wesley Woods, the administrator of John M. Dennison, and Marcus Dennison, his son, about fourteen years of age, and Sarah Savin, his daughter, of full age, who had intermarried with Thomas L Savin; and on the 6th of September 1816, a decree was passed by the chancellor, that unless the defendants, or either of them, shall before the 6th day of October following, Y>xy to the complainanls, or bring into the court to be paid to them, the sum of #4472 50, with interest on #4462 75, part thereof, from the 7th day of September 1813, until paid or brought in, the mortgaged property mentioned in the proceedings should bo sold by a trustee, named in the decree. On the 28th of October 1816, the defendants appealed from this decree; and to suspend further proceedings, entered into the appeal bond, referred to in the record. At June term 1818 of the court of appeals, this decree was [76] affirmed, and a sale of the mortgaged premises having been made by the trustee soon after, the same sold for $5350, a sum less $819 49, than the amount of the mortgage debt, interest and costs, and the expenses attending the sale. This deficiency is the sum claimed by the appellees in this suit on the appeal bond; and whether the court were correct in their instruction to the jury, to make this the measure and standard of damages to be found by them, is the question we are now called upon to examine and decide. This question makes it necessary for the court to give a construction to the appeal bond, and to advert to the act of assembly, with a view to which it was framed. The condition of the appeal bond is in these words: “Whereas by a decree of the high court of chancery, passed on the 6th day of September 1816, in a cause wherein the said David Fulton and George Starch, are complainants, and the said Thomas L. Savin, Sarah Savin, Wesley Woods, and Marcus Dennison, are defendants, the above bound Thomas L. Savin, Sarah Savin, Wesley Woods, and Marcus Dennison, are decreed to pay to the said David Fulton and George Starch, the sum of four thousand four hundred and seventy-two dollars and fifty cents, with interest on four thousand four hundred and sixty-two dollars and seventy-five cents, part thereof, from the 7th day of September 1813; from which said decree the aforesaid Thomas L. Savin, Sarah Savin, Wesley Woods, and Marcus Dennison, are about to appeal to the high court of appeals. Now the condition of the above obligation is such, that if the said appellants do and shall prosecute their said appeal with effect, and satisfy and pay to the said David Fulton and George Starch, their executors, administrators or assigns, as well the said sum of four thousand four hundred and seventy-two dollars and fifty cents current money, with interest as aforesaid, in manner as by the said decree is provided and directed, in'case the said decree shall be affirmed, as also all costs which shall be awarded by the court of appeals, and in all things perform such decree as by the said court of appeals shall be made in the premises, then the above obligation to be void; otherwise to remain in full force and virtue.55 [77] The condition of this bond has a direct reference to the only decree passed by the chancellor between the parties, which must, therefore, be considered in connexion with it, in ascertaining its meaning. Taking them together, it is to be seen at the first glance, that a decree for the absolute payment of money is recited; whereas that appealed from, is a decree against an administrator and representatives, for the sale of mortgaged premises, and is unquestionably a decree in rent — One intimates a general judgment, that would involve the personal responsibility of the defendants, and subject their persons and property to execution; the other points to a specific .adjudication, rendering liable a certain fund, out of which is to be raised the mortgage money of the complainants. The last is clearly the thing about which the contracting' parties proposed to contract»and it will be in strict unison with the rules of contraction, so to expound the first and more general terms, as to coniine their meaning, and make them comprise no more than the object, which was within the immediate view of the parties. 2 Com. on Cont. 533. To consider then this appeal bond, in the same way, as if it had truly recited the chancellor’s decree, the next inquiry is, what operation will it have thereon, in reference to the act of '713, ch. 4? It will certainly bo a security for the costs, because the}'' are within the express terms of its stipulations; and it having worked a suspension of proceedings in the court below, it would seem a demand of justice, that the party delayed should be secured in a compensation for damages. But the interesting point is, by what criterion shall those damages be measured? This is not like the case of Karthaus vs Owings, where this court determine, on an appeal in replevin, that the value of the properly to be returned should measure the damages sustained by the party. There the appellant, by force of the judgment appealed from, had to do an act, the neglect to do which was injurious to the appellee. Here by the terms of the decree, the appellants may be considered as being passive, and bound to do nothing. Unless they pay or bring the mortgage money into court by an assigned day, the day liable to be enlarged by the affirmance of the decree, the mortgage premises are to be sold; and as it is within their option to perform or not, their omission to pay or [78] bring the money into court cannot be said to produce an injury or damage to the mortgagees. If this is not the source of damage to the party, we clearly think it is not to be found in the deficiency of the fund to pay the mortgage debt and interest. The law does not compel those representatives to guarantee the adequacy of the fund, pledged by their ancestor; and there is nothing in their obligation, nor in the act of assembly in reference to which it was made, to oblige them to do it. In their stipulation to prosecute with effect, they have undertaken to proceed with their appeal to its successful termination; but in case of failure, they have not bound themselves to pay the debt, nor make good the fund; and this is not the legal and necessary consequence of a forfeiture of their bond. They are liable in damages for the actual injury suffered by the appellees from the delay, and this appears to the court to be the legitimate ground on which to estimate damages; and we, therefore, are of opinion an error was committed in rejecting the interest on the debt, proffered by the counsel for the defendants. If the fund pledged was unequal to the payment of the debt at the time of the decree, the intermediate accruing interest was a clear loss to the plaintiffs, occasioned by the delay, and might properly have been made a standard for measuring their damages. We do not, however, mean to say, that a loss of interest was the only injury sustained by them. This is all in the case which to us has that appearance. It was certainly competent to the plaintiffs to have insisted on any further damage suffered by them, provided it was in their power to have shown that it proceeded from the suspension caused by filing the bond. Injury from delay seems to us the true test, and in whatever manner it arises, evidence of it in a case like this is fit and proper for the consideration of the jury. AUB6MENT REVERSED, AND BROCEDENDO AWARDED.