Randolph v. Harris

By the Court,

Sanderson, C. J. This is an action upon a lost promissory note, by an assignee against the maker—or, as averred in the complaint, a note which had been “totally destroyed by fire.” There is no averment in the complaint to the effect that the plaintiff had tendered to the defendant a good and sufficient bond of indemnity before bringing the action. The only averment upon that subject is in the following words: e “Plaintiff avers that he has offered, and now offers, to indemnify defendant against any loss or damage he may sustain on account of the destruction of said note.” The action was commenced on the 27th day of June, 1864. On the 13th of August following the plaintiff filed a bond of indemnity with the Clerk of the Court, and at the trial tendered the same to the defendant, who [564]refused to accept it because it was insufficiently stamped and because it bad not been tendered before suit. No objection was made to the form of the bond or the sufficiency of the security. The Court held that the plaintiff was not bound to tender indemnity before suit, but that the bond was insufficiently stamped, and permitted the plaintiffto add the requisite amount of stamps. In this connection the record contains the following: “ The plaintiff also testified that he offered an indemnity bond before the suit was commenced, and that the defendant made some remark that amounted to a waiver of such bond.” The case was tried by the Court, but no findings were filed. Judgment was for the plaintiff for the amount claimed, but is silent upon the subject of indemnity.

It is first insisted that the complaint is fatally defective in not averring that a proper indemnifying bond had been prepared and tendered before the commencement of the action.

It was held in Welton v. Adams & Co., 4 Cal. 37, and reaffirmed in Price v. Dunlap, 5 Cal. 483, that where it appears that a negotiable security has been lost or destroyed, the maker has a right to require indemnity against all future claims under it before its payment can be enforced. In the former case, as in this, the security had been destroyed by fire, but it was held that there was no distinction to be made between a lost instrument and one proved to have been destroyed. We are satisfied with the doctrine of that case, but we do not understand that it goes to the length of holding that the bond must be prepared and tendered in advance of suit. The complaint in that case did not aver the tender of a bond, nor, as in the present case, contain an offer to give one, but on the contrary sought to excuse the plaintiffs from giving a bond on the ground of their inability to do so. The Court held that they must give one before the defendants could be compelled to pay, and the judgment of the Court was that “the judgment (which was for the plaintiffs) be reversed and the cause remanded.” No direction was given to the Court below to dismiss the action, on the ground that the complaint contained no cause of action, which would doubtless have been