Stratton v. Henderson

Breese, J. We do not consider any of the errors assigned, or points made by the plaintiffs in error, as substantial. The action was debt upon a bond for two thousand dollars, with a condition. The first count, is on the penal part of the bond only. The second and third counts on the bond setting out the condition with the proper breach, and damages claimed to two thousand dollars. The defendants pleaded nil debet, with notice that- they would give in evidence the payment of the damages before suit brought. The plaintiffs put in evidence the bond sued on, tallying in every respect with the bond described in the declaration, but varying from the copy filed with the declaration. Whereupon the defendants objected to giving it in evidence, because of this variance, which objection was overruled, and the plaintiffs permitted to amend the copy in conformity to the original. This ruling constitutes the foundation for the first two errors assigned. There is nothing in the objection. If there was not a copy of the instrument declared on filed ten days before court, the defendants were entitled to a continuance, nothing more. That they did not claim, but went to trial. The bond offered in evidence was the bond described in the declaration, and there was no variance. A variance from the, copy is never held to be important on trial. On trial, the bond was admissible, even if no copy whatever had been filed. The copy was not the foundation of the suit, and is no part of the record. The bond given in evidence was the same as the bond described in the declaration—the allegations and proofs therefore agreed, and that is all that can be required in any case, and it is always exacted. It,was discretionary with the court to allow the amendment of the copy on the trial, as the mistakes in it were clearly clerical. But the amendment was wholly unnecessary. The party having gone to trial on' the merits, it was only necessary for the plaintiffs to show such a bond as they had described in their declaration. The remaining errors assigned, present the real questions in controversy. They are free from all difficulty, and are all disposed of by reference to the condition of the bond, which is as follows: “ Now, therefore, the condition of this obligation is such, that if the said Potter shall, on or before the twenty-fifth day of June, A. D. 1858, deliver to the said Hendersons, or to their agents, the notes of the kind and to the amount aforesaid, then this obligation shall be null and void, otherwise to remain in full force and entire.” The meaning of which is, that if the judgment debtor, A. S. Potter, shall deliver the specified col-laterals at the time agreed upon, then the obligation was to be void, if not, it shall be in force. Now, clearly, under such a contract as this, it must be wholly immaterial what the pecuniary circumstances of Potter may have been. The defendants have undertaken for him, that by a certain day, hó’ shall do a certain act for the benefit of the plaintiffs. If he was worth millions, it did not relieve the defendants from their responsibility. Those of them who are sureties, if compelled to pay for his default, can resort to their action against him to be reimbursed out of his abundant means. That is a matter in which the plaintiff can have no interest. It is sufficient for him that he has their guarantee, that his debt shall be paid at a certain time and in a particular way, by a timely deposit of good collaterals to the amount of eighteen hundred dollars, and which, if not paid and discharged, should be the absolute property of the plaintiff at his election, in satisfaction of his judgment. On failure of Potter to deliver these collaterals, can there be any doubt that the plaintiff was entitled to his action at once, against the defendants, and can there be any question as to the measure of his damages? We think not. The plaintiff had a right to repose upon the security of the bond, and on default, claim either the amount of the judgment or the value of the col-laterals. He has elected the former, and although that judgment may be collectable, it is no sort of defense to the undertaking of the defendant, which was the timely delivery of the col-laterals. That Potter should pay plaintiff’s judgment, is no part of the undertaking. There is nothing on which to base the third and fourth errors. As to the fifth error, it is expressly stipulated in the bond that the judgment against Potter should bear interest at the rate of ten per cent, from its date. The remaining error is, that the plaintiff’s counsel was sworn to prove a calculation of the amount due on the judgment with interest at ten per cent. Such a practice is very convenient, and aids a jury very much, where the calculation of interest is at all complicated. The jury are not obliged to take the calculation of the attorney though given to them under oath; they can, notwithstanding, make the calculation for themselves. We are not altogether in favor of allowing the counsel for either party to be a witness for his client to prove any fact, but we have no law or rule of practice, as some courts have, forbidding it. We would be better satisfied, that the proof should come from an indifferent party. As to the remaining objection, the death of Charles N. Henderson, one of the plaintiffs, was suggested on the record before trial, as is shown by a supplemental record, filed by leave of this court. So there was no error in taking the judgment in favor of Charles M. Henderson as survivor. There being no such errors in this record as are assigned, the judgment is affirmed. Judgment affirmed.