Panter v. National Surety Co.

LENNON, P. J.

This is an appeal from a judgment in favor of plaintiff in an action to recover damages upon a bond given by the defendant National Surety Company.

The facts of the ease briefly stated are these: On December 21, 1910, a prior action was instituted in the superior court

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of Mendocino County by one Jacobs against Frank Panter, the plaintiff here, and others, in which action on the said twenty-first day of December, 1910, the court issued an order of injunction, restraining the defendants there from the commission of certain acts and prohibiting the Crocker National Bank from paying or crediting to the account pf Frank Panter, the plaintiff here, any moneys or stoqk then in its hands or thereafter to be received by virtue of a certain contract. Thereafter, on January 11, 1911, the defendant National Surety Company executed its undertaking in the sum of two thousand five hundred dollars, which purported to be obligated to protect the plaintiff here from any damages resulting to him by reason of the issuance of an injunction in that action. After the service of the injunction on the bank, Panter demanded of it payment to him of the sum of $35,544.57, the amount which it had in its possession credited to his account. In compliance with the writ the bank refused payment. The cause was transferred to the superior court of Shasta County and the injunction of December 21, 1910, was there dissolved on April 4, 1911.

In the present action upon the bond, judgment was rendered and entered for plaintiff Frank Panter in the sum of $1,576.05, being $750 paid to counsel for securing a dissolution of the injunction, $252.43 interest on that sum from date of its payment to January 27, 1916, at seven per cent, $36.20 expenses of Panter for two trips necessary and incidental to the securing of the dissolution of the writ, and $12.19 interest thereon, and the sum of $525.23 as the reasonable value of the use of the sum of $32,544.57 from January 12, 1911, to April 4, 1911.

The principal point presented upon this appeal is that the bond in suit was without consideration. This contention is based on recitals in the bond, which was attached to and made a part of the plaintiff’s amended complaint. The recitals referred to are that, “Whereas the above named plaintiff had commenced or is about to commence an action . . . against the above named defendants and is about to apply for an injunction in said action against said defendants . . . Now, therefore, the undersigned, National Surety Company, a corporation, ... in consideration of the premises, and of the issuing of said injunction, does hereby undertake in the sum of $2500 and promise to the effect that in case