Moody v. Citizens' Sav. & Inv. Co.

Smith, C. J., delivered the opinion of the court. B. C. Martin purchased of W. H. Daniels Auto Company an automobile, making a cash payment thereon and executing to the company ten promissory notes, each for the sum of ninety-three dollars and twenty cents, for the balance of the price agreed by him to be paid therefor. These notes were assigned by the company to the appellee herein, who, on Martin’s failure to pay the notes when due, brought this suit to recover the amount of the notes and to enforce the purchase-money lien therefor as provided by section 3079 et seq., Code 1906 (Hemingway’s Code, section 2436 et seq.) The automobile was seized by the sheriff under a writ issued by the clerk of the court below under section 3080, Code 1906 (section 2437, Hemingway’s Code), and after-wards released to Martin on his executing a bond therefor on which the appellants were sureties. The case was'heard on the bill and Martin’s answer thereto, resulting in a decree against Martin for the amount of the notes, and the appointment of the sheriff as a commissioner to- sell the automobile for the payment thereof, with directions to report the sale at the next term of court for confirmation. The decree then recites that “all other issues in the same cause be, and the same are hereby, continued and set for hearing at said term.” At the succeeding term of the court the commissioner reported that he had sold the automobile and obtained therefor the sum of twenty-five dollars which report was confirmed. The appellee then filed a motion praying for a decree against the sureties on the replevin bond for the difference in the value of the automobile at the time the bond was given and the twenty-five dollars for which it was sold by the commissioner. An agreement was then entered into by counsel reciting: “That the value of said automobile at the time it was delivered back to the said B. C. Martin on said forthcoming bond was five hundred dollars ($500) and that [409] the said Martin nsed and kept said automobile in his possession until about the-day of January, 1922, when he delivered said automobile to Webb Walley, sheriff of Greene county, Miss., and commissioner in this cause, and that the said Webb Walley did on the 2d day of February, 1922, sell said automobile in accordance to a decree of this court, and that at said sale said automobile sold for the sum of twenty-five dollars ($25), which was a fair price for said automobile at that time. That said automobile depreciated in value from the time of the execution of the forthcoming bond to the date delivered back to the said Webb Walley, special commissioner, four hundred seventy-five dollars ($475). “It is agreed that if the sureties are liable for said forthcoming bond, the amount of their liabilities will be the sum of four hundred seventy-five dollars.” The.appellee’s motion was then sustained and a decree for four hundred seventy-five dollars was rendered against the sureties on the replevin bond, from which they have appealed to this court. As we understand the agreement of counsel, the depreciation in the value of the automobile was caused by the damage which resulted to it from its use by Martin, from which it follows that the sureties on his bond could not relieve themselves of the judgment against them for the value of the automobile by delivering it to the commissioner. The liability of the sureties on the replevin bond here in question for the return of the bonded property or to pay its value is the same as the liability of the sureties on such a bond executed in the ordinary action of replevin. Consequently the case is ruled by Hazlett v. Witherspoon, 25 So. 150, wherein this court held that the sureties on a replevin bond cannot be discharged by a tender of the bonded property if it has been so damaged after the execution of the bond as to become practically worthless. Affirmed.