Ely v. Liscomb

SHAW, J.

Action to recover upon an undertaking given by defendants pursuant to the provisions of section 514 of the Code of Civil Procedure. Judgment went for plaintiff, from which defendants appeal.

[225]

In June, 1904, plaintiff brought suit in claim and delivery against Ben C. Williams and Forrest Flint for the possession of certain chattels, consisting of horses, vehicles, and other equipment of a livery stable, including a barn 75 by 120 feet in dimensions, which was erected upon a lot the use of which was leased therefor, and upon all of which plaintiff held a chattel mortgage executed by Williams and Flint, to foreclose which plaintiff had brought suit.

For the purpose of securing the return of the chattels Williams and Flint, defendants in that action, caused an undertaking executed by defendants herein, as prescribed by said section 514 of the Code of Civil Procedure, to be given the sheriff; whereupon he returned the property to defendants in said action.

On October 31,1904, the ease was tried, followed on November 17th by a decision for plaintiff, in whose favor judgment was entered on December 17th. The lease of the lot upon which the barn was erected, by its terms, expired January 1, 1905, and the provisions of the lease were such that if the barn was not removed before the termination of the lease, all right of the lessees thereto terminated and the same became the property of the lessor as owner of the lot. Prior to the time of the trial Williams and Flint had abandoned the business and delivered possession of all the property involved' in the action to the defendants herein, who had given the undertaking for the return thereof. All of the property for which delivery was adjudged, other than the barn, was by these defendants delivered to plaintiff after January 1, 1905, at which time, by reason of the title to the barn having under the terms of the lease passed to the owner of the lot, it was impossible to deliver the same to plaintiff.

This action was brought to recover the value of the barn, together with damages and costs expended in the suit instituted against Williams and Flint for the recovery of the property.

In their answer defendants alleged that subsequent to September 22, 1904, said Williams and Flint at divers times offered to deliver to said plaintiff all of the personal property described in the complaint, including said barn, and on November 28, 1904, made an offer in writing to deliver all of the