Nevin v. Thompson

California Supreme Court Dec 28, 1893 No. No. 19,318Published

Before: Temple

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Holding. The court held that a complaint sufficiently states a cause of action against sureties on a bond when it alleges that the debt sued upon is the same debt assumed by the sureties, even if the description of the debt in the bond and the complaint appear inconsistent.

Issues

Whether a complaint is sufficient against a general demurrer when it alleges that the debt sued upon is the same debt assumed by the sureties in a bond.
Whether a third party liable for the debt must be joined as a defendant in an action against sureties on a bond.
Whether a complaint is fatally uncertain when it references both a promissory note and a bond.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The complaint does substantially aver that the indebtedness sued upon is the same as that described in the bond”

“Although Cambrón was also liable for the debt, it was not necessary to make him a defendant in this case”

“There is no uncertainty as to whether the appellants are sued on the bond.”

Synopsis

Bond to Secure Note—Action to Enforce—Pleading.—A complaint averred that defendant T. gave to plaintiff a note for $700; that, six months afterward, defendants D., as principal, and S. and 0., as sureties, gave T. a $3,000 bond, which was set out, conditioned that whereas T. and T. J. O. (who was not made a party) “are now indebted to parties hereinafter named in the sums set opposite each name, and that the purpose of this obligation is to relieve the said T. from any and all liability on said indebtedness, as follows, and we hereby agree to assume and pay the same, to wit, two promissory notes of $700 each, and the interest thereon: .... Now, if the said T. J. C., or any of the parties save and except the said T.,” shall pay such sums, the bond shall be void, etc.; that T. was then indebted to plaintiff on two notes, one of which is the one sued on; and that the only indebtedness from T. to plaintiff was that evidenced by such notes. Held, that such complaint was not subject to a general demurrer, because the bond was to relieve T. from liability on a joint indebtedness of T. and T. J. C., while the debt sued on was T.’s only.

Bond to Secure Note—Action to Enforce—Parties.—Nor was such complaint demurrable because T. J. O. was not a party, as he was not a necessary party.

Bond to Secure Note—Action to Enforce.—Such Complaint was not defective for uncertainty as to whether the suit was on the note or on the bond.

TEMPLE, C. This appeal is upon the judgment-roll. The complaint shows that defendant Thompson, in June, 1890, executed and delivered to plaintiff a promissory note for the sum [391]of $700, which note plaintiff still owns and holds, and which has not been paid;, that, on the eleventh day of December following, the defendants Daley, Schulenberg and Christian executed and delivered to defendant Thompson an instrument in writing, which is set out in the complaint. This instrument, it was averred, as written, did not truly express the intention of the parties to it, and the plaintiff asked to have it reformed. This was done, and no point is made here as to that procedure. As it is alleged the parties meant to have it read, and as it is made to read by the judgment and decree of the court, it is a penal bond executed by Daley as principal, and Schulenberg and Christian as sureties, who are held and firmly bound to Thompson in the sum of $3,000, jointly and severally; and is conditioned “that whereas the said Frank C. Thompson and one Thomas J. Cambrón are now indebted to the parties hereinafter named in the sums set opposite each name, and that the purpose of this obligation is to relieve the said Frank C. Thompson from any and all liability on said indebtedness, as follows, and we hereby agree to assume and pay the same, to wit, two promissory notes of $700 each, and the interest thereon: .... Now, then, if the said Cambrón, or any of the parties save and except the said Thompson, shall well and truly pay the said amounts, then this obligation is to be null and void, and otherwise to remain in full force and effect.” It is alleged that Thompson was then indebted to plaintiff upon two notes, one of which is the note set out in the complaint, and that the only indebtedness from Thompson to plaintiff was that evidenced by the two notes. It is then averred that these notes are wrongly described in the bond, and the court is asked to reform the instrument so as to correctly describe them.

The complaint was demurred to generally for insufficiency of the statement of facts; for uncertainty as to whether the suit is on the note or bond; for nonjoinder of Cambrón as a party defendant; and for misjoinder, in that Christian is not a proper party defendant. The point is made that the bond is to relieve Thompson from liability upon a joint indebtedness of Thompson and one Cambrón, while the indebtedness upon which suit is brought is an indebtedness of Thompson alone. Therefore, as Daley, Schulenberg and Christian have only undertaken to pay a joint indebtedness of Thompson and Cambrón, it does not appear that they have undertaken to

Nevin v. Thompson

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