Bucy v. New Amsterdam Casualty Co.

DORAN, J.

The controversy herein arises out of a claim and delivery action instituted by Sehimel Arms Corporation against respondent Buey to recover four dies used by Sehimel in the manufacture of a carbon dioxide gun. The dies were made by Buey, a die casting foundry operator, in 1949 or 1950; three of the dies were paid for while the fourth, known as the Gas Chamber Die, was made later and had not been paid for. Buey claimed a lien on the dies and die molds for the unpaid price and the trial court found that such lien had not been waived.

In connection with its claim and delivery action against Buey, the Sehimel Arms Corporation provided a claim and delivery bond executed by appellant New Amsterdam Casualty Company, in accordance with section 512 of the Code of Civil Procedure, whereupon the dies were taken from Buey by the Marshal and delivered to Sehimel Arms. The undertaking provides that the New Amsterdam Casualty Company “does hereby obligate itself to defendant under said statutory obligations (C.C.P. Sections 512 and 1041) in the sum of . . . $15,000.00.”

Section 512 provides that the obligors in such a bond “are bound to the defendant in double the value of the property as stated in the affidavit

for the prosecution of the

action, for the return of the property to the defendant, if return thereof be adjudged, and for the payment to him of such sum as may from any cause be recovered against the plaintiff.” (Italics added.)

In the claim and delivery action Buey filed an answer alleging right of possession by virtue of an unpaid seller’s lien, but did not seek judgment for a return of the dies taken by the Marshal, or a money judgment in lieu thereof. Later, a motion was made by Buey for permission to file an amended

[574]

and supplemental answer asking a return of the dies or the value thereof. The claim and delivery action was never tried because two days after the filing of this motion, such action was dismissed by Schimel Arms. Thereafter, Buey filed the present action on the bond executed by New Amsterdam Casualty Company, and recovered judgment in the sum of $3,871.08, interest and costs, from which judgment New Amsterdam now appeals.