Tissot & Wife v. Darling

Burnett, J., delivered the opinion of the Court—Terry, C. J., and Field, J., concurring. Suit upon an undertaking on appeal. Defendants demurred. Demurrer overruled. Defendants then answered, and plaintiffs had judgment, from which defendants appealed.

The undertaking was executed by defendants, in the case of Tissot and Wife v. Throckmorton, (6 Cal. Rep., 471,) which was a suit upon a note executed by Throckmorton to Mrs. Tissot, during the marriage.

The first objection is that there is no averment in the complaint that execution was issued upon the judgment against Throckmorton.

When, by the terms of the contract, express or implied, a request or demand constitutes a condition precedent to the bringing of the suit, then it must be averred. (1 Ch. Plea., 328, 330.) But there is nothing in the undertaking making a request necessary. The defendants bound themselves that the appellant should pay the judgment. The non-payment of the judgment can be shown without the issuing of an execution. (15 Wend., 502; 5 Gill and J., 102; Nickerson v. Chatterton, 7 Cal. Rep., 573.)

The second objection is that the undertaking was not executed by Throckmorton, but only by the defendants. This objection has been decided by this Court not to be well taken. (Curtis v. Richards & Vantine, January, 1858.)

The third objection is not well taken. The note upon which the suit was brought against Throckmorton was executed to the wife alone, and the undertaking in that case was executed to the husband and wife. There was no proper objection made to the joinder of the wife with the husband in that case; and, by not making any such objection, Throckmorton admitted she had an interest in that suit, and the defendants are concluded by his act as to that matter. But besides this, the undertaking having been executed to husband and wife, she may join; and the un[286]dertaking itself shows her peculiar interest in the suit without any further averment. (1 Ch. Plea., 30.)

There is nothing in the other points made by the counsel of defendants. The appeal seems to have been taken for purposes of delay, and the judgment is, therefore, affirmed, with ten per cent, damages.