Elder v. Kutner

California Supreme Court Mar 9, 1893 No. No. 18027Published

Before: Searls

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Holding. The court held that damages resulting from the inability to sell or mortgage real estate attached by a writ are too remote to be recovered from sureties on an attachment bond, and that counsel fees are not recoverable unless they have been actually paid. Because the complaint stated a cause of action for nominal damages despite the stricken paragraph, the court reversed the judgment sustaining the demurrer.

Issues

Whether damages for the inability to sell or mortgage real estate attached by a writ are recoverable from sureties on an attachment bond.
Whether an allegation of having 'incurred' attorney's fees is sufficient to state a cause of action for their recovery.
Whether a complaint that states a cause of action for nominal damages is subject to a general demurrer.

Disposition. reversed

Quotations verified verbatim against the opinion

“The impairment of plaintiff’s credit, his inability to sell the land levied upon or to contract a loan upon the security of such land, was not a proximate but a remote consequence of the attachment.”

“The damage accrues from the payment, and not from incurring the liability so to do.”

Synopsis

Attachment — Undertaking — Action against Sureties — Measure of Damages. — An action upon an undertaking upon attachment is an action upon contract, and the measure of damages, in an action against the sureties, is the amount which will compensate for the detriment proximately caused to the party aggrieved, or the proximate consequences naturally and ordinarily resulting from the effect of the writ.

Id. — Liability of Sureties. — The liability of sureties is limited by the terms and conditions of their contract, and cannot be extended by implication beyond its terms.

Id.-—Impairment of Credit of Attachment Debtor —Pleading—• Motion to Strike out. — The impairment of the credit of an attachment debtor whose real property has been attached, and his inability to sell or mortgage the land levied upon, are not the proximate consequence of the attachment, and the sureties upon the attachment bond are not liable in damages therefor. A motion to strike such matter from the complaint, in an action upon the attachment bond, should be granted.

Id. —Malicious Attachment.—In an action against the sureties on an attachment bond, the questions of motive and probable cause for the attachment are immaterial, and the fact that the attachment was malicious does not affect their liability.

Id.—Attorney’s Fees in Defending Attachment — Payment—Pleading— Incurring of Liability not Sufficient. —In an action against the sureties on an attachment bond, counsel fees for defending the attachment suit cannot be recovered, in the absence of an allegation that they have been actually paid. An allegation that the plaintiff “engaged an attorney to represent him therein, and inenrred attorney’s fees ” in the amount sought to be recovered, is not sufficient.

Searls, C. This action was brought in the superior court of the county of Fresno, to recover damages against the respondents, as sureties upon an undertaking in an attachment suit against the plaintiff and appellant here, which attachment suit was dismissed.

The complaint contains two counts. In the first, plaintiff, after the usual averments in reference to the suing out and levy of the attachment upon his land at Fresno, as a predicate for the recovery of damages, alleges as follows, in paragraph 9:—

“That between the twenty-first day of January, 1891, [492]and the i wenty-seventh day of August, 1891, the plaintiff had need of a large sum ct. money for his immediate use, desired, had an opportunity, and was able to mortgage his said premises for the purpose of raising money for his immediate use and great pressing needs, and had opportunity of selling his said premises, but was not able to mortgage or sell the same, on account of said attachment having been levied and remaining unsatisfied as aforesaid, and creating a cloud upon plaintiff’s title to his said premises; that the plaintiff had to sacrifice other property — horses, mules, and stock — on his said premises at greatly reduced and inadequate prices, for the purposes of meeting his immediate necessities and raising money; that by reason of his not being able to mortgage or sell his said premises, and having tó sell the horses, mules, and stock on his said premises, the plaintiff has been greatly damaged, to wit, in the sum of four hundred ($400) dollars, the amount of said undertaking.”

It is further averred that the attachment was “ wrongfully, and unlawfully, and maliciously sued out,” and that the plaintiff herein “ did not owe any portion of the indebtedness sued on in said action.”

The second count of the complaint is based upon plaintiff’s supposed right to recover attorney’s fees in the attachment suit; and the only portion thereof necessary to the points made is to the effect that plaintiff was put to great expense in defending that action, “ and engaged an attorney to represent him therein, and incurred attorney's fees, to wit, the sum of one hundred dollars.”

Defendants attorneys demurred to the complaint, upon the ground that it did not state facts sufficient to constitute a cause of action; and moved to strike out that portion of the first count, quoted herein, in reference to damages sustained by reason of the lien of the attachment upon the land.

Elder v. Kutner

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