Pacific Automobile Exchange v. Stansfield

FINCH, P. J.

In an action brought by plaintiff to recover the sum of $3,609,85 from Edward L. Tobin there was issued an attachment under which the sheriff took possession of an automobile belonging to Tobin. The defendants herein executed and delivered to Tobin an undertaking in the following form:

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“Whereas, the above-named plaintiff commenced an action in the Superior Court of the County of San Francisco, State of California, against the above-named defendant, claiming that there was due to said plaintiff from said defendant the sum of Six Hundred and no/100 ($600.00) Dollars, or thereabouts, and thereupon an attachment issued against the property of said defendant as security for the satisfaction of any judgment that might be recovered therein; and certain property and effects of the said defendant have been attached and seized by the sheriff of the said Tulare County, under and by virtue of said writ:

“And whereas, the said defendant is desirous of having said property released from said attachment:

“Now, therefore, we the undersigned, residents and householders in the County of Tulare, in consideration of the premises, and also in consideration of the release from said attachment of the property attached, as above mentioned, do hereby, jointly and severally, undertake in the sum of - Dollars, and promise that in case the plain-

tiff recover judgment in the action, defendant will, on demand, pay to plaintiff the amount of whatever judgment may be recovered in said action, together with the percentage, interest and costs; the same to be paid in United States Gold Coin, if so required by the terms of the judgment. ’ ’

Tobin, without the knowledge or consent of either defendants or plaintiff, changed the words “Six Hundred and no/100 ($600.00),” appearing in the undertaking as delivered to him, to “Three Thousand Five Hundred and Fifty-nine and 85/100” and inserted “Four Thousand” in the blank space for the amount of the penalty of the undertaking. As so changed, Tobin delivered the undertaking to the sheriff, who thereupon released the attached property. Plaintiff recovered judgment against Tobin in the sum of $2,250. This action is for the recovery from the defendants of the amount of such judgment. The court found the facts as stated and gave the plaintiff judgment for the sum of $600. From this judgment the plaintiff has appealed on the judgment-roll alone.