Dillon v. Lineker

GILBERT, Circuit Judge (after stating the facts as above). [1] The case comes to this court upon the judgment roll and without a bill of exceptions. The plaintiffs in error contend that upon the allegations of the complaint the amount in controversy was but $2,850 and interest, and that therefore the court below was without jurisdiction. It is true that in general, where a contract to pay a specific sum of money is broken, the damages are measured by the sum stipulated to be paid; but the rule is otherwise “where the obligation to pay money is special, and has reference to objects other than the mere discharge of a debt, in which case special damages may be recovered, according to the actual injury.” 17 C. J. 863; Green v. Gregory (Tex. Civ. App.) 142 S. W. 999; Scheele v. Lafayette Bank, 120 Mo. App. 611, 97 S. W 621; Bixby-Theisen Co. v. Evans, 174 Ala. 571, 57 South. 39. [2] In the present case the complaint shows that Norvena Lineker was without money or resources other than her incumbered real estate, which was subject also to an outstanding life estate, and that perforce she depended wholly upon Mary J. Dillon to protect her property. The case is not unlike those which are above cited. But, even if the amount of damages here is to be measured by the “amount stipulated to be paid,” it is clear that the amount which Mary J. Dillon stipulated to pay was in excess of $3,000. This is not an action to recover the amount of the loan of Norvena Lineker to Mrs. Dillon’s son. It is an [690] action to recover damages for the breach of Mrs. Dillon’s promise to hold Norvena Dineker harmless against the threatened sale of her property undeij the trust deed for the nonpayment of the principal and interest of her debt to McColgan. The amount recoverable as damages was at the very least the sum which, at the time when the promise was made, would have been necessary to pay to redeem the property from the trust deed. That amount, principal and interest, was at that date more than $3,000. [3] We find no merit in the contention that the complaint fails to state a cause of action. The fact that Mrs. Dillon received the use and benefit of the money which her son borrowed from Norvena Dineker constituted a good and sufficient consideration for her promise to hold the latter harmless from the trust deed and to pay McColgan’s claim, a promise which Norvena Dineker accepted, relied upon, and acted upon. She forbore to sue Mrs. Dillon, and in that forbearance Mrs. Dillon received additional consideration for her promise to pay. Johnson & Higgins v. Harper Transp. Co. (D. C.) 228 Fed. 730. It was not necessary that Norvena Dineker should have made a promise to forbear. Actual forbearance, without a promise to forbear, is sufficient, if such forbearance is at the request of the promisor and in reliance upon his promise.” 13 C. J. 348; In re All Star Feature Corp. (D. C.) 232 Fed. 1004. [4] Error is assigned to the judgment, in that it directs that the same be satisfied, not only out of the separate property of Mary J.Dillon, but also out of the community property of her and her husband; the contention being that the community property is not subject to the payment of such a.judgment, where the marriage occurred after the date of the wife’s contract. But in Van Maren v. Johnson, 15 Cal. 308, 313, the court said: “The separate property of the wife ánd the common property of both husband and wife are equally liable for the debts of the wife contracted previous to her marriage.” See, also, Henley v. Wilson, 137 Cal. 273, 70 Pac. 21, 58 L. R. A. 941, 92 Am. St. Rep. 160. The judgment is affirmed.