Lachmiller v. Lachmiller Engineering Co.

FOX, J.

Defendant appeals from that part of an order which denied its motion to discharge an attachment.

Plaintiff brought this action to recover for services rendered and on two promissory notes in the total amount of $30,652.79. He caused a writ of attachment to be issued and levied on defendant’s place of business (and a keeper put in charge) and on its bank account of approximately $14,000. He posted a bond in the amount of $21,000 executed by a corporate surety. The authority, however, of the attorney in fact who signed the bond on behalf of the surety was limited to $10,000. The limitation of the agent’s authority was a matter of record. Upon discovery of this information defendant moved to discharge the writ of attachment on the ground,

inter alia,

that it was “improperly and irregularly” issued in that the person who executed the document was without authority to sign a bond in that amount. At the hearing on defendant’s motion, plaintiff proposed to release all property under attachment except the bank account and to replace the bond with a new one in the amount of $3,065.28, being 10 per cent of the amount of plaintiff’s claim. The court thereupon denied the motion to discharge the attachment on condition a bond in the sum of $3,065.28 be posted forthwith and the levy immediately released on everything except the bank account. The condition was complied with by plaintiff. It is from the order denying its motion to discharge the attachment that defendant appeals.

Defendant’s position is that “the purported bond filed herein was void because the person pretending to act for the bonding company had no authority to do so” and that “the undertaking being void it cannot be amended because it never existed.” In arguing that the initial bond was void defendant overlooks the provisions of section 2333 of the Civil Code, which provides that “When an agent exceeds his

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authority, his principal is bound by his authorized acts so far only as they can be plainly separated from those which are unauthorized.” In this matter the agent was expressly authorized to sign bonds up to $10,000. He was not, however, authorized to execute bonds beyond that amount. It is thus obvious that his authorized act can be “plainly separated” from his unauthorized act, and that since he was authorized to execute a bond up to $10,000 the principal was bound to that extent under the quoted code section. (See