11 158 91 565 Strunk v. Ocheltree, et al. STRUNK V. OCHELTREE et al. 1. CONSTABLE'S BOND. Held that where a constable acting in his official capacity levied upon and sold property which was exempt from levy and sale under execution, he and his sureties were liable on his official bond for the damages thereby sustained. Appeal from Cedar District Court. SATURDAY, OCTOBER 6. James L. Fyan, for the appellant. No appearance for the appellee. BALDWIN, J.-The plaintiff in his petition represents, that the defendant, John R. Ocheltree, was duly elected as constable in said county, and qualified as such, by giving bonds with the other defendants as sureties. That by virtue of his said office, there was an execution placed in his hands against the plaintiff and that by virtue of such execution he willfully and wrongfully levied upon a certain mare of plaintiff's which was exempt from seizure and sale. That plaintiff was a farmer, the head of a family, that the mare thus levied upon and sold was part of a team by which he habitually earned his living. Plaintiff further claims that the said defendant as constable by such sale unfaithfully dischaged his duty as an officer, that he and his sureties are liable therefor. The defendant in his answer admits his charracter as constable, admits the levy and sale, but claims that the property sold was not exempt therefrom; and claims that plaintiff turned out said property, for such levy, and that he had a team, &c. besides the mare sold. Upon the trial the court instructed the jury, that plaintiff had not set forth sufficient in his petition to enable him to recover, and that they must find for the defendant, which they did accordingly. It was by the giving of this instruction by the court that appellant claims he was prejudiced, Strunk v. Ocheltree, et al. and asks a reversal. Upon what ground the court held that the plaintiff was not entitled to recover does not appear. We infer from the argument of the counsel, however, it was upon the supposition' that the defendant was not liable. as an officer, that if he sold the property of plaintiff as is claimed when the same was exempt from execution, that it was only trespass, and that he was not liable upon his official bond for such injury. Section 324 of the Code provides that every civil officer, not before mentioned (and this includes constables) is required to give bond with surety, conditioned that he will faithfully and impartially, without fear, favor, fraud, or oppression, discharge all the duties of his office required by law. Section 1693 provides that when a bond or other instrument given to the State or to a county, or to any officer or person, which is intended for the security of the public generally, or of any particular individual, suits thereon may be brought in the name of any one intended thus to be secured, who has sustained any injury in consequence of a breach thereof. The substance of the allegations in plaintiff's petition is, that defendant as constable, by virtue of his office, wrongfully levied upon property of plaintiff that was exempt from seizure and sale; that by such act he did not faithfully discharge the duties of his office according to law; that in consequence thereof the plaintiff has sustained great damages, for which he claims that defendant is liable upon. his bond. The defendant by his answer relies solely upon his defence, that the property was not exempt, yet the court instructed the jury that the petition was insufficient. In this we think the court erred. There was sufficient alleged, if proved, to justify a recovery. The defendant levied upon the property and took possess ion of it by virtue of his office, and sold the same when he had no right to do so. He did this as an official act. The wrong was committed by color of his office, a wrong which Jones v. Wilson and Dunham. his sureties obligated themselves he would not do, and for which they should be held responsible. Judgment reversed. JONES V. WILSON AND DUNHAM. 1. SURETY. The holder of a promissory note may recover against the maker thereof and a surety who signed the same after maturity in one action; the liability of the surety being absolute-as a principal— and not conditional. Appeal from Louisa District Court. SATURDAY' OCTOBER 6. SUIT upon a note made payable by Wilson and Durham to one Burris and by him assigned to plaintiff. The note was made in July, 1857, due twelve months after date. Upon the trial before a jury, it appeared that Dunham signed the note as surety for Wilson in February, 1859. Counsel for Dunham therefore claimed that as he signed the note after its maturity, his undertaking was collateral, that he stood in the relation of guarantor, and that plaintiff could not recover against him in this action. This view was sustained by the court, and the action dismissed as to said defendant, from which order plaintiff appeals. Phelps & Robertson for the appellants relied upon section 1681, Code of 1851. J. Tracy and C. B. Harrington for the appellees. WRIGHT, J.-Under the Code, section 1681, and the construction given to it by this court, we think this action was properly brought against Dunham. Peddicord & Wyman v. Whitium et al 9 Iowa 4711. Judgment reversed. 1. See also Hall v. Monohan 6 Iowa 216; Long v. Smyser & Hawthorne' Ib. 266. Goodpaster v. Porter and Courtney. GOODPASTER V. PORTER AND COURTNEY. 1. MUTUALITY. In a contract relating to the sale of real estate, the obligors bound themselves to pay to the obligee a certain sum, by a day named, for said real estate, if the said obligee should elect to sell the same, Held, that after an election by the obligee in accordance with the terms of the agreement, the contract could not be avoided for want of mutuality. 2. PLEADING: FAILURE OF CONSIDERATION. An objection to a petition in an action upon an instrument in writing, on the ground that it is not alleged or shown either in the petition or writing that it is sustained by a sufficient consideration, can not be taken by demurrer. It must be averred and shown by way of defense. 3. SURPLUSAGE. Allegations in a petition which do not form a basis for plaintiff's prayer for relief, and could be properly stricken therefrom as surplusage, cannot operate to vitiate the action. 4. MEASURE OF DAMAGES. Where an obligor in a contract agreed to pay a price fixed on a day named for certain real estate if the obligee should elect to sell the same; the obligee, upon electing to sell, was entitled to recover the price named in the contract, without regard to the value of the land at the time of such election. Appeal from Polk District Court. TUESDAY, OCTOBER 9. THE foundation of this action is the following instrument in writing: "In consideration of a sale this day made by Henry Courtney to Levi Goodpaster, of the following described property, viz: (describing a section of land as being in R. 84, T. 28) for which the said Goodpaster has paid the said Henry Courtney the sum of two thousand dollars; Now we, the undersigned, in order to induce the said Levi Goodpaster to purchase the above described property, do hereby guarantee to said Goodpaster or his assigns that said property will be worth twenty-eight hundred dollars on the 30th day of November, 1857. And we further bind ourselves to pay to the said Goodpaster the sum of $2800 for said property, on the 30th November, 1857, if the said Goodpaster should elect to sell said property at that time. This WILL PORTER, 11 161 89 528 11 161 d127 549 11 161 140 748 Goodpaster v. Porter and Courtney. Plaintiff declares for the $2800, the contract value of the land, and alleges that on the 28th of November, 1857, he elected to take said sum, and tendered to said defendants a good and sufficient deed for said premises, and demanded said sum, but that said defendants neglected and refused, &c. The petition also avers that the correct description of the land sold was not given in said agreement; that the parts of sections were correctly stated, but that the Town, was 84, and the Range 28, and not T. 28, R. 84. To the petition there was a demurrer, which was overruled as to the second count and sustained as to the first. Trial before the court, judgment for plaintiff, and defendants appeal. John Mitchell and C. C. Cole for the appellants. 1. The contract is void for want of mutuality. Will. Eq. 267; 6 Paige 288; 2 Barb. S. C. 439; 4 Maine 92; 4 McLean 19; 6 Ohio 135; 1 John Ch. 273; 1 Harrington Ch. 120; 12 Barb. S. C. 502; Tucker v. Woods, 12 John 190; Chitty Cont. 15-18; Story Cont. 447-8, 301–2; 12 How. (U. S.) 126. 2. The contract as to Porter is void because unsupported by a consideration. 4 John 235; Chitty Cont. (8th ed.) 45, and the authorities there cited. 3. All that plaintiff could recover in any action at law would be the difference between the value of the land at the time he elected to sell, and the amount defendants agreed to pay him for the same. 2 New Hamp. 131. 4. Plaintiff cannot have his contract reformed in an action at law. Casady, Crocker & Polk for the appellee. An offer to sell, with a given time within which the party to whom the offer is made may accept, is binding if the offer is accepted within the time. Story Cont. 373, section 382; Brooks v. Ball, 18 John. 337; Train v. Gold, 5 Pick. 384; Limerick Academy v. Davis, 11 Mass. 113; Story on Bail. section 137. A contract may be optional, as to its enforcement, with one party and not with the other. |