Blume v. Berry

STEPHENS, J.,

pro tem.

In an action entitled

Blume

v.

Huntington Mutual Oil Co.

the defendants herein signed a bond for the release of certain property taken under attachment. The plaintiff recovered judgment in that action, and not having collected the full amount thereof from the judgment debtor, he brought suit against these defendants on the bond for the balance. At the conclusion of plaintiff’s case defendants submitted a motion for nonsuit, which was denied. The defendants offered no evidence and the judgment went against them. They appeal, assigning several reasons which they claim support their prayer for a reversal of the judgment.

Inasmuch as we think the judgment must be reversed for an obvious error we shall notice it first and then refer but briefly to the other assignments. The error upon

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which we base the reversal is that the bond does not require that the signers shall pay the judgment or any unsatisfied portion thereof, but that they will “pay to the said plaintiff the full value of the property released, ’ ’ and there is no evidence whatever of the value of the property released. It seems too plain for argument that, there being no evidence on the very basis of the obligation, the judgment cannot stand.

A Miss Kurrle testified that she mailed a demand to defendant Berry in care of someone else, but there is no evidence that he ever authorized this or that he ever actually received the demand. This testimony was objected to on the ground of lack of foundation and that there never was any authority for mailing any notice or demand in care of anyone. There was no evidence that the place to which the demand was sent was the address of either of the defendants. We think the objection should have been sustained.

A Mr. French, a deputy sheriff, made an oral demand upon defendant Berry, individually and as president of the Huntington Mutual Oil Company, for the amount of the judgment or the unpaid balance thereof and for a redelivery of the attached property. The complaint and the findings are to the effect that the demand was for the “re-conveyance” instead of the “redelivery” of the attached property. We think the meaning is clear that a redelivery was intended and that the proof supported both the complaint and the finding.