Foss v. Norris

Barrows, J.

The contract signed by the defendant contains.a promise to pay the plaintiff eight hundred dollars, or to redeliver, on demand, to the plaintiff or to his successor in office, at Abbot, free of expense to the officer or attaching creditors, certain specified goods and chattels which appear by the recitals in the contract to have been attached by the plaintiff on certain writs against Lewis E. Norris.

The contract contains also a stipulation for such redelivery within thirty days after the rendition of judgment in the actions in which the attachments were made, if no demand should be made. The agreed statement signed by counsel shows that judgment has been rendered in these actions, and that the officer is *119 liable to the creditors for the value of the property attached and described in the contract, the amount of the attachments as stated in the contract being five hundred and sixty-five dollars.

It further appears in the agreed statement that “ a legal demand was made on the defendant,” a certificate of which was indorsed on the contract, indicating that on October 19, 1877, Zenas B. Poole, a deputy of the plaintiff, demanded of the defendant the property attached, “or in default thereof its value in current money.”

The defendant objects to a recovery by plaintiff on the ground that it does not appear that judgments had been rendered in the actions in which the attachments were made at the time of this demand, or that they were rendered more than thirty days before the commencement of this action, or that plaintiff’s deputy had any authority to make the demand.

The case seems to have been somewhat carelessly made up, hut, wo think enough appears to show ihat the plaintiff is entitled to judgment. The contract was a lawful one. It purports on its face to be “ for value received,” and the recital of the attachments made therein is sufficient evidence of a legal consideration therefor. After a legal demand, made either before or after the rendition of judgment in the suits in which the property is attached, an action may be maintained thereon so long as the attaching officer is under a liability to creditor or debtor for the property attached. When such a demand is made, the liability of the defendant is fixed, and it is not necessary to show that the thirty days after judgment, within which he agreed to redeliver the property if no demand should be made, have elapsed before the commencement of the suit.

We cannot assent to the defendant’s proposition that the “legal demand,” which he has admitted means a demand which is legal in form only, or that the relurn of a demand made by the plaintiff’s deputy on tbe contract shows that the demand was not a legal one.

A “ legal demand ” means a demand properly made as to form, time and place, by a person lawfully authorized, and may be made before or after judgment in tbe suits in which the property is *120 attached, and by an agent of the promisee duly authorized. The admission of a legi^l demand includes an admission that the demand was properly made at Abbot, at a suitable time and place by the duly authorized agent of the promisee, having the receipt in his possession to be discharged if the contract was performed.

Nor will any reasonable or proper construction of this statement of facts admit the hypothesis that the defendant responded to the demand and performed his contract. It is no valid objection to the demand that the plaintiff’s deputy called upon the defendant to redeliver the goods, or in default thereof to pay according to his alternative agreement. He does not appear to have done either.

The extent of the. liability of the officer to the parties in the original suit or suits is the measure of damages. Commonly in these cases the liability to the attaching creditor is the one chiefly to be regarded, because usually the debtor whose property is attached procures the receiptor, and when he does this and the property is returned to the possession of the debtor upon the reception of such a receipt as this, the attachment is thereby dissolved and the contract alone remains for the security of the officer and the creditor. Waterhouse v. Bird, 37 Maine, 336. But cases might arise where the attaching officer might be under a liability to the debtor as well as the creditor, and the indemnity should be coextensive with the liability.

This case as it is presented, does not furnish the material's for an intelligent assessment of damages. We might surmise that the liability to the attaching creditors is the only one which needs to be regarded. But, this conceded, we have nothing from which the damages can be ascertained.

The amount of property which the officer is ordered to attach in the writs would rarely be the precise amount for which he would be responsible, and which would be needed to constitute a complete indemnity for him.

Defendant defaulted. To be heard in damages at nisi prius.

Appleton, C. J., Haneorth, Virgin, Peters and Symonds, JJ., concurred.