Opinion
15 Cal. 9 at 11.
Original Opinion of January 1860, Reported at: 15 Cal. 9.
Judgment affirmed.
COUNSEL
1. All the obligees in the bond should have been parties plaintiff. (1 Chitt. Pl. 13; 1 Pars. on Cont., 11 to 20, and cases.)
2. A demand on the principals, Davis and Martin, should be made before suit against the sureties. (1 Chitt. Pl. 331; Tissot v. Darling, 9 Cal. 278 .)
J. I. Caldwell, for Appellants.
McConnell & Niles, for Respondent.
JUDGES: On petition for rehearing, Baldwin, J., delivered the opinion of the Court. Cope, J., concurring.
OPINION
BALDWIN, Judge
This suit was brought on an injunction bond.
1. The first error assigned is the overruling of a demurrer to the complaint. The ground of demurrer was, that the bond was given to the plaintiff and other obligees, and, therefore, the plaintiff had no right to sue alone for a breach of it. But the complaint shows that the property upon which the injunction operated was the sole property of the plaintiff, and the sole injury was his. Within the case in 10 Cal. 347, Summers v. Farish, the suit was well brought in the name of the party really and alone interested in a recovery, and to whom the fruits of the judgment would go.
2. All the instructions except the fifth, asked by the defendant, embody a fatal error. In actions for the breach of a contract, nominal damages are presumed to follow as a conclusion of law, from proof of the breach--a principle negatived in effect in the charges asked.
3. The fifth asserts the necessity of a demand for payment of unliquidated damages, not on the obligors, but on the men for whom, as sureties, the obligors stipulated. We are not acquainted with any such rule or ruling of law.
4. It is not clear that the damages were excessive.
5. The last point is, that the judgment is against Martin and Davis, when they were not sued. We suppose that this is a mere clerical error in entitling the cause. If the appellants desire it, they can move this Court, or the Court below, to amend the pleadings showing the error.
Judgment affirmed.
On petition for rehearing, Baldwin, J., delivered the opinion of the Court
Cope, J., concurring.
A petition for a rehearing is filed. The ground is error of this Court in assuming that no judgment was had against Davis and Martin, but only against the sureties, Hollingsworth and Lampe. It is true that the action was originally against Martin and Davis and these sureties; but the complaint was amended, and the defendants, the sureties, only embraced in the amended pleadings upon which the issue was found and the cause tried. This operated as a discontinuance as to the defendants omitted by the last pleading. It is also true that the verdict and judgment are entitled as in the caption of this opinion. But this is a mere clerical misprision. It is only the name given to designate the cause, and is of no effect against Martin and Davis. The judgment is to be referred to the issue, and may be now considered as formally so modified. The error, however, is unimportant. The rehearing is refused.
See Prader v. Purkett, (13 Cal. 588 ) as to suit by one of several obligees