Huntington v. Fisher

Wright, J. i. Bomb : requisites of. It is not the office of a bond to show a breach of its conditions. Nor is it essential that it shall recite the terms or conditions upon which a partiCxila,r act is to be performed. Indeed, one may be held as the surety of another upon a written contract, without conditions. And this is apparently the nature of the obligation now in suit. In effect this is the fair construction of the language used. Defendant undertook to stand as the surety of Knowles for the return of a horse left with him by plaintiff. It was not necessary to recite when, where, or upon what conditions the return was to be made. [278] Si_for secur. notnamea?n privity. [277] The point upon which the case was ruled by the District Judge, however, and that upon which there was dis [278] agreement in the General Term, arises upon th& fourth ground of the demurrer. And, indeed, it is quite apparent that this is the -point upon which the case must turn. And here we feel constrained to hold that the demurrer was not well taken. ' • Tire privity of contract is not disturbed by the fact that'-the bond is for the security of two persons, nor by the thought that it was given for the primary security of the insurance company. Our statute declares that, when a bond or other instrument given to any person is intended 'for the security of particular individuals, suit may be brought thereon in the name of any person intended to be thus secured, who has sustained any injury in consequence of a breach thereof (Rev. § 2787). And under this statute, upon the facts stated in this petition, plaintiff could have maintained this action, though his name had not been mentioned or recited in the bond. And certainly the right is clearer when his interest in the property is disclosed upon the face of the undertaking. He is a “ person intended to be secured ” thereby, and shows affirmatively that he has “ sustained injury in consequence of a breach thereof.” A stronger or clearer case of right, to me, of an interest .direct, immediate and original, could not well arise. The consideration for the undertaking moved directly from plaintiff. It was new and distinct, received not from the company, but from plaintiff, and hence, aside from the language of the instrument, it asserting nothing to the contrary, the law implies a promise to him. Not only so, but conceding that the contract is in the name of the insurance company — yet as, by the averments of the petition it was in part for the benefit of plaintiff — he would clearly have the right to sue thereon in his own name. Rev. §§ 2757, 2758, and notes thereunder, and particularly Hastings v. McKinley, 1 E. D. Smith, 273; [279] Erickson v. Compton, 6 Pr. E. 471; and see, also, Cottle v. Cole, 20 Iowa, 486; Rice v. Savery, 22 id. 470; Corning v. Snow, 11 Mass. 415; Conyngham v. Smith, 16 Iowa, 471; Watson v. Hunkins, 13 id. 549 ; Miller’s Pl. & Pr. ch. 2, 32, et seq. Eeversed and remande}^'