Simmons Hardware Co. v. Alturas Commercial Co.

HU STON, J.

These eases, resting, as they do, upon similar facts, and involving the application of the same principles of law, were heard together, and will be so considered by the court. The appeal is from orders of the district court denying applications for the discharge of certain writs of attachment sued out by the plaintiffs and levied upon property of defendant. The record contains the papers upon which the motions were made, consisting of the affidavits for attachment and the undertakings in each case, the motions, and the order of the court thereon. We will consider the questions raised by the record in the order in which they were presented upon the hearing.

*337 It is contended by appellant that the affidavit of attachment in the case of Simmons Hardware Co. v. Alturas Commercial Co. is void for the reason that it affirmatively appears therefrom that at the time the same was made the plaintiff had received from the defendant, and still held, as collateral security for the debt sued for, a pledge of personal property. Said affidavit, after the usual statements required -by the statute, contains the following statement: “That after said contract was made, and said claim became payable to the plaintiff, the' defendant sent to the plaintiff, as collateral security for said claim, a certain account purporting to be an account against a firm known as ^Holland & Short/ and that defendant agreed to forward in place of said claim a note of said firm of Holland & Short. That defendant has not forwarded to the plaintiff a note of said firm of Holland & Short, hut instead thereof forwarded what purported, to be a note signed by one W. A. Holland and J. B. Short as individuals, and that said note was taken by the defendant from the said individual, Holland and Short, in pursuance of an agreement made between the said defendant and the said firm of Holland & Short, and that said claim of Holland & Short should be merged in said note (and said claim was and is merged in said note). That, in accordance with said agreement between Holland & Short and the defendant, said Holland and Short, individuals, made and executed said note, and delivered the same to the defendant, as plaintiff is informed and believes, and the said defendant sent the same to this plaintiff in order that this plaintiff might take the same in place of said claim of said firm of Holland & Short, and hold the same as collateral security, but this plaintiff is unwilling to take and accept the said note as collateral security, and has returned the same to the defendant. That the plaintiff has now no security whatever for its said claim, and that the pretended giving of security by the defendant to the plaintiff was imfairlv, and, as affiant believes, fraudulently, made and attempted for the purpose of defrauding the plaintiff of any chance to secure his claim by attachment, and of defrauding plaintiff out of his said claim, and that there was never in fact any security. That this attachment is not sought, and the action is not prosecuted, to hinder, delay or defraud any creditors *338 of the defendant.” It is contended by appellant that as the affidavit admits the receipt by the plaintiff of the account or claim against Holland & Short, and does not show that the same was ever returned to the defendant, we must conclude that said claim or account was so kept and retained by plaintiff as security for the debt for which attachment was sought. Accepting the statements in the affidavit as true — which, for the purposes of this case, we must do — no issue having been raised by the filing of counter-affidavits or otherwise upon this question, we must base our conclusions entirely upon the record before us. Does it support this contention? The claim of account against Holland & Short was accepted by plaintiff conditionally, to wit, that the same should be substituted by the note of said firm of Holland & Short. The defendant procured and sent to plaintiff the individual note of Holland and Short, which plaintiff declined to accept, and returned, as not being in conformity with its agreement with defendant. Conceding that the account or claim against Holland & Short remained in the possession of plaintiffs, of what avail was it to them as security ? The plaintiff could not sustain an action upon the account against Holland & Short, for it had at the demand of its creditor (the defendant) liquidated the claim by giving a note therefor; so the same was valueless in the hands of plaintiff or anyone else, and this impairment of value was in no way attributable to the acts of the plaintiff. It is not necessary to attribute any fraud or wrongful motive to defendant in this transaction. It is sufficient to say that it appears that, from the record before us, the agreement to give the plaintiff security was not carried out according to its terms, and that the security proffered was not accepted, but was returned to the defendant. This case is not in parity with Murphy v. Montandon, 3 Idaho, 325 , 35 Am. St. Rep. 279 , 29 Pac. 851 . In that case the plaintiff had received and accepted a draft or order, and had not only retained it, but had received partial payment thereof. The consideration of this point does not involve the question of amendment of the affidavit. We think the affidavit, as set forth in the record, was sufficient.

Appellant objects to the affidavit for attachment in the case of Standard Oil Co. v. Alturas Commercial Co. upon the ground *339 that the same was not signed by the affiant, although duly verified. The authorities upon this question are somewhat conflicting. The trend of decision seems to be directed, if not controlled, by the letter of the statutes. If the statute requires, as in some cases it does, that the affidavit shall be “signed and sworn to,” or “subscribed and sworn to,” the letter of the law has been held to control, and the signature of the affiant held to be an indispensable requisite to the validity of the affidavit. On the other hand, when the statute has not in terms made the signing of the affidavit a necessary incident, the absence of the signature of the affiant has been held not to invalidate the affidavit. Some of the chancery courts of this country, following a rule laid down by the chancery courts of England, have insisted upon the presence of the signature of the affiant to give validity to the affidavit, but a contrary rule has obtained in the courts of law from a very early period. In Haff v. Spicer (1805), 3 Caines, 190 , it was quite peremptorily held that the absence of a signature to the affidavit did not invalidate it. The court says (and this is the whole text of the decision): “It begins with his name, and that is sufficient”; and this ruling is followed and affirmed by the same court in Jackson v. Virgil, 3 Johns. 540 , and this rule seems to have obtained generally, when the wording of the statute has not required a departure therefrom. Under the weight of authority, and the imperative requirements of section 4 of our Kevised Statutes, we feel constrained to hold that the signing of the affidavit was not in this case an indispensable prerequisite to the issuance of the attachment; although we believe, with many of the authorities who thus hold, that it is the better practice to have the signature of the affiant appear upon the affidavit, as it doubtless would do but for mistake or inadvertence on the part of the attorney in drawing the papers.

Objection is made by appellant to the undertakings filed in both of the cases under consideration. In the ease of Simmons Hardware Co. v. Alturas Commercial Co. the original undertaking closes with these words: “The plaintiff will pay all costs that may be awarded to the defendant, and all damages that he may sustain by reason of attachment under execution, in the sum of $4,000.” It is palpable that the words “under execu *340 tion” were inserted by inadvertence or mistake. They have neither pertinence, place or meaning as they appear, nor would they, in our opinion, at all affect the validity of the undertaking. We think they come clearly within the rule laid down by Judge Amasa J. Parker in Teall v. Van Wyck, 10 Barb. 379 , which is as follows: “When the words of a bond are not sufficiently explicit, or, if literally construed, the words would be nonsense, it must be construed with reference to the intention of the parties. In doing this it is allowable to depart from the letter of the condition, to reject insensible words, and to supply obvious omission.” The intention of the party here was to procure a remedy provided by the statute, by a compliance with the terms and conditions of the statute. The object and purpose of the statute is that one seeking the remedy by attachment shall, before being allowed to avail himself of such remedy, give the indemnity to the defendant required by the statute. We think the indemnity required by the statute was complete under the first undertaking, but, even if it were not, the filing of the second undertaking by leave of court placed the matter beyond cavil.

The objection of appellant that the filing of the second undertaking was unauthorized is not tenable. We have found no authorities in support of this contention, while, aside from the plain and unequivocal provision of our own statutes, all the authorities we have been able to consult upon the question are against the contention of appellant. Our conclusions cover the objections raised by appellant to the undertaking in the case of Standard Oil Co. v. Alturas Commercial Co. The orders of the district court in both cases are affirmed, with costs.

Morgan, C. J., and Sullivan, J., concur.