Beals v. Evans.

There are some other averments in the petition, which is not very artificially drawn; but these do not, as they are stated, amount to anything upon which an issue could be taken.

The case was tried before the Judge of the Fifth District, who found the facts alleged in the petition to be true, but dismissed the proceeding. From this order, the appeal is taken.

It is objected by the respondents that the relator has no title to the warrant, because the county could only sell its property at public auction, after notice, etc. But this provision has no application to such a case as this. The act never intended to provide for the sale of the choses in action of a county, at public outery. And we do not find any restriction on the power of a county to exchange its credits for its debts, or for money, if it so desires, and can find any one to contract with it on these terms. If the county of Calaveras is satisfied with this arrangement, we do not see that Amador has any right to complain.

The next and more serious objection to giving the relator the relief he seeks for the $14,000, is founded on the ninth section of the act of 1855. (Acts 1855, p. 167.) That section is as follows:

"The board of supervisors of Amador county are hereby authorized and required to assess a special tax of thirty cents on the hundred dollars on all taxable property of said county, to create a 'Sinking Fund' for the liquidation of said debt; said tax to be collected at the time and in the same manner as other county taxes; and said supervisors are required to set apart from the General Fund' of said county a sum which, added to the 'Special Fund,' shall be equal in amount to the one-half of the entire General Fund' of said county; which 'fund' the Treasurer of Amador county is required to set apart and reserve for the payment of said indebtedness of Amador county to Calaveras county, when ascertained in the manner above prescribed; which said fund' shall continue until said indebtedness be declared, and until an amount equal to said indebtedness shall be set apart and reserved by said treasurer, as aforesaid."

It is contended that, under this section, taken in connection with the general law on the subject of payment of the indebtedness of counties, no part of the sum collected of this special fund can be demanded until the whole amount is paid into the county treasury. We think this is a forced construction of this statute. The fund is a special fund, to be collected for the express purpose of paying this debt, and to be held as a trust-fund for this exclusive object. No use can be made of it as it lies in the treasury. It is so much dead capital. It was contemplated that it should gradually accumulate, or, at least, it was not expected to be paid in for a considerable period after the act passed for raising it. It can scarcely, therefore, be supposed to have been the intention of the Legislature to permit the fund to be idle while the debt was drawing interest, when it was for the benefit of both payor and

McCarty v. Beach.

payee that it should be paid off as soon as possible. This warrant is larger in amount than it is usual for such securities to be, and to pay it in instalments, or piecemeal, would not, therefore, be attended with the trouble of paying small warrants in parcels.

Nor do the words relied on in the ninth section justify this construction of respondent. There is nothing in the language "the creation of which said fund shall continue until said indebtedness be declared, and until an amount equal to said indebtedness shall be set apart and reserved by said treasurer as aforesaid," which requires the fund to remain with the treasurer until the whole of it is needed for the payment of the indebtedness in one

sum.

According to the argument combated, the county of Amador might fail to collect any more of this money, or the officers might fail to account for it or place it in the treasury, and this be given as an answer to the demand to pay over what is already in hand.

But little force is due to the suggestion that, unless payment be reserved until the county treasurer of Amador can take up the warrant by paying it in full, he can not get a sufficient voucher. We see no difficulty on this score. A receipt, and corresponding credit endorsed on the warrant, will be sufficient to protect the county and the officer making the payment.

For these reasons, the judgment of the Court below is reversed, and cause remanded for a judgment upon the finding, in pursuance of this opinion.

MCCARTY v. BEACH.

The law imports a consideration to a sealed instrument from its seal. At common law a want of consideration could not be pleaded to a suit on a sealed instrument, the presumption of a consideration being absolute and conclusive. The statute of this State has not altered the presumption of a consideration which still accompanies the instrument, but only modified the rule so far as to allow it to be rebutted in the answer. In an action for the breach of a contract, the want of any averment of special damage can not be reached by demurrer. Such averment is only necessary where the right of action itself depends upon the special injury received. For the breach of a contract an action lies, though no actual damages be sustained.

APPEAL from the District Court of the Tenth Judicial District, County of Yuba.

This is an action upon the following bond:

"Know all men by these presents, that I, George H. Beach, am held and firmly bound unto John T. McCarty, his heirs, executors, administrators, and assigns, in the penal sum of three

McCarty v. Beach.

thousand dollars, lawful money of the United States, for the payment of which, well and truly to be made unto the said John T. McCarty, his heirs, executors, administrators, and assigns, I bind myself, my heirs, executors, administrators, and assigns, firmly by these presents. Sealed with my hand and seal, this fourteenth day of March, A. D. 1854.

"The condition of the above obligation is such, that whereas the above bounden Geo. H. Beach did, upon the thirteenth day of March, A. D. 1854, bargain, sell, and convey unto the said Jno. T. McCarty, for the sum of twelve hundred and fifty dollars, that piece or parcel of land situate in the city of Marysville, Yuba county, California, and known and described upon the map of said city as part of lot six, (6,) block four, (4,) range E., viz.: that portion situate on D street, commencing on the west side of D street, at a point one hundred and twenty-three (123) feet southerly from the north-east corner of said block four, (4;) and running from thence northerly, on the line of D street, twenty feet; thence at right angles, westerly, eighty feet; thence at right angles, southerly, twenty feet; thence at right angles, easterly, eighty feet, to the place of beginning on D street; and whereas said property is now mortgaged by said Beach, in connection with adjoining property, to Henry Ryman, for the sum of twenty-five hundred dollars, now if said Beach shall have said. mortgage satisfied and released as to said property sold said McCarty, above described, or all liens or mortgages upon said property sold to said McCarty, above described, satisfied and released, within four months from the date of these presents, then the above obligation is to be void, otherwise to remain in full force and virtue, in law and equity.

"G. H. BEACH, "The above interlineation made before execution. "Witness: H. LEVY."

[L. S.]

The complaint sets forth the sale and conveyance, by the defendant to the plaintiff, of the property described in the bond, for the consideration of $1250; that previous to such sale and conveyance, the property sold had been, in connection with other property, mortgaged to one Henry Ryman, by the defendant, to secure the payment of his promissory note of $2500; that the defendant executed the above bond, a copy of which is annexed to the complaint; that the defendant has not, at any time, released, or caused to be released, from the lien of said mortgage, the property so sold to the plaintiff, and has not paid, satisfied, or released, said mortgage, but has neglected the same, and has suffered Ryman to foreclose his mortgage, and to obtain a decree for the sale of the said property to satisfy the said note; and that under said decree the property was sold and no redemption made from the sale, and that a sheriff's deed was in due time executed

McCarty v. Beach.

and delivered to the purchaser, whereby the property purchased of the defendant has been wholly lost to the plaintiff, together with buildings and improvements-placed upon the same by the plaintiff after his purchase-of the value of $800, whereby an action hath accrued to the plaintiff to recover of the defendant the amount of the bond-$3000-and the value of the improvements. The complaint concludes with a prayer for judgment for $5000 damages, etc.

To the complaint, the defendant demurred on fifteen grounds. The demurrer was sustained, and final judgment rendered thereon for the defendant. From this judgment, the plaintiff appealed. On the argument of the appeal, the defendant relied only upon two grounds to sustain the demurrer: first, the want of any averment in the complaint of a consideration for the bond; and, second, the want of any averment of special damage.

Lindley and Mc Connell for Appellant.

R. S. Mesick for Respondent.

FIELD, J., delivered the opinion of the Court-TERRY, C. J., and BALDWIN, J., concurring.

This is an action upon a bond, executed by the defendant to the plaintiff in March, 1854, in the penal sum of three thousand dollars, conditioned for the release and satisfaction, within four months thereafter, of a mortgage upon premises previously sold and conveyed to the plaintiff. To the complaint-which avers the sale and conveyance; the existence of the mortgage; the execution of the bond; the failure of the defendant to comply with its conditions, and consequent sale of the premises under the mortgage, and their loss to the plaintiff the defendant demurred, assigning for cause thereof, fifteen different grounds. The demurrer was sustained, and from the final judgment rendered thereon the appeal is taken.

On the hearing, the counsel of respondent confined his argument to two grounds-and which, it may be said, are the only two meriting notice: first, the want of any averment in the complaint of a consideration for the bond; and, second, the want of any averment of special damage.

Neither of these are well taken. The first ground is answered by the fact that the bond, which forms a part of the complaint, is a sealed instrument, to which the law imports a consideration from the seal. At common law, a party was not permitted to plead a want of consideration as a defence to an action upon a sealed instrument-the presumption of the existence of a consideration being absolute and conclusive. (Vraaman v. Phelps, 2 Johns., 177; Door v. Munsell, 13 Johns., 430.) The statute of this State has modified the rule in this respect so far as to permit

Arrington v. Tupper.

the want of consideration to be pleaded. It has not, however, altered the presumption which still accompanies the instrument, but allows it to be rebutted in the answer. Its language is, "it shall be lawful" for the defendant "to plead such want of consideration."

It is true, that where a want of consideration for the execution of the instrument is apparent from the averments of the complaint, the fact may be taken advantage of by demurrer, but such is not the present case.

The want of any averment of special damage, if such were the fact, could not be reached by demurrer. This is not one of those cases where the right of action itself depends upon the spécial injury received. For the breach of a contract an action lies, though no actual damages be sustained. (Sedg. on Dam., 53; Marzetti v. Williams, 1 Barn. & Adol., 415.)

But aside from this, we are of opinion that the complaint does aver special damages with sufficient clearness and particularity, namely, the entire loss of the property purchased. Judgment reversed, and cause remanded.

ARRINGTON et al v. TUPPER.

To a complaint verified, the defendant filed a copy of the original verified answer by mistake; parties took depositions under the pleading, and subsequently went to trial. After the close of the plaintiff's evidence, his counsel, then, for the first time, brought the mistake to the notice of the Court, by moving for judgment by default, which motion the Court sustained, and refused to allow defendant to then verify his answer: Held, that the Court erred, and should have allowed the defendant to have verified his answer.

APPEAL from the District Court of the Ninth Judicial District, County of Siskiyou.

The facts sufficiently appear in the opinion of the Court.

Crosbey and Steel for Appellant.

Winans for Respondents.

BALDWIN, J., delivered the opinion of the Court-TERRY, C. J., and FIELD, J., concurring.

In this case, the error in filing the answer, which was a copy of the original verified answer, appears to have been the result of excusable mistake, which the opposite party seems to have encouraged, or, at least, the plaintiffs did not avail themselves of