Coburn v. Brooks

Paterson, J. This action was commenced August 22, 1876, trial had January 6, 1886, and judgment of non-suit thereafter entered, from which plaintiff has appealed. The action is against the defendants as sureties, in an undertaking given under section 1254 of the Code of Civil Procedure. The defendants herein became sureties for the plaintiffs in the case of Templeton v. Coburn, a proceeding in eminent domain then pending in the twelfth district court. The condition of the undertaking is, that said sureties “do hereby undertake, promise, and agree that the plaintiffs in this case shall and will pay all such damages or compensation as may be awarded to the defendants, or either of them, .... if for any cause such land shall not be finally taken for public use, or in default thereof we will pay the same,” etc.

[445]Upon the trial the plaintiff introduced evidence tending to prove each and every allegation of the complaint herein, and rested his case. There is no allegation in the complaint of a demand upon the principals named in the undertaking for the damages claimed by plaintiff, nor did the plaintiff offer any evidence of such demand. The judgment of nonsuit was granted solely upon the ground that the plaintiff had neither pleaded nor proved a demand upon the principals named in the undertaking, and the only question before us is, whether such a demand must be alleged or proved.

The court below seems to have been embarrassed by the decisions of this court in Morgan v. Menzies, 60 Cal. 348, and 65 Cal. 243, and bound by the following statement of Chief Justice Morrison on the first appeal: “It will be observed that the undertaking on the part of the defendants is that the plaintiff in the action will pay, and there is no averment in the complaint that it is not paid, or that even a demand has been made. There is not, therefore, any averment in the complaint of a breach which would give the plaintiff in this case a right of action against the defendants on the undertaking.” The two decisions referred to are somewhat confusing, but when read together, they fail to support the proposition, we think, that a demand upon the principal in cases like the one before us is necessary. In that case, the principal for whom the defendants had become sureties was the city and county of San Francisco. An examination of the full record, including the briefs, dis-. closes the fact that the principal contentions, on behalf of the appellants therein, were, first, that “the attachment undertaking on which the action was based was taken without authority, and contrary to law, no undertaking being required of the city. (Code Civ. Proc., sec. 1058.) Being unauthorized and taken by an officer without authority of law, it is void, and cannot be enforced”; second, that “the city and county was not in default for