Kirkman Nurseries v. Thorwaldson

RICHARDS, J.

This is an appeal from a judgment in favor of the Kirkman Nurseries, respondent herein, in an action against the defendants and appellants, who were sureties on a redelivery bond given to release personal property seized by the sheriff.

A thorough understanding of the case necessitates a recital of the facts in the original claim and delivery action in which judgment was given in favor of the plaintiff and against J. J. Sargent. Those facts as found by the court are: That in February, 1915, the nurseries company entered into a written contract with one Rose, by the terms of which the said nurseries company was to deliver to Rose one hundred thousand fig cuttings of assorted varieties, free of charge, which Rose was to plant and care for upon his land, and during the winters of 1915-16 and 1916-17 was to deliver to the nurseries company such of said cuttings as should have developed into trees three feet high, free from pests or injury of any kind, at the agreed price of thirty dollars per thousand; that in the summer following Rose transferred his interest in the land on which the fig trees were growing to Sargent, who took the land with full knowledge of the contract existing between' the nurseries company and his predecessor; that Sargent performed his part of the contract for a time, but later ah

[3]

ruptly discontinued to perform, and refused to deliver any more trees to the nurseries company. Thereupon the nurseries company brought suit against Sargent in claim and delivery. Judgment for possession of the property, or for the value thereof, was returned in favor of the nurseries company. Execution was levied and returned unsatisfied, whereupon the nurseries company brought this action against these defendants as sureties on the redelivery bond. Trial was had before the court, a jury having been expressly waived. From the judgment entered in favor of plaintiff this appeal is prosecuted.

[1]

The appellants first attack the finding of the trial court that the property described in the bond and pleadings in this action is the same property described in the judgment in the original action of the nurseries company against Sargent, claiming that the finding is not supported by the evidence and is in conflict with the findings in the original ease. We have carefully examined each description and admit that the trees are not described in identical terms, but there is ample evidence for the conclusion that the same property was involved in each case. The record discloses that the trees levied upon by the sheriff were included in the trees described in the contract between Rose and the nurseries company; that there was no other nursery stock than the trees described in the contract growing upon the parcel of land described therein at the time the original complaint was filed, and that none was planted in the interim between that date and the date of filing the amended complaint. We are unable to perceive any conflict with the findings in the original case. Under such evidence the finding of the trial court will not be disturbed.