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Douglass v. Rathbone & Lyman

5 Hill & Den. 143 Court N.Y. Sup. Ct. English

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p. 143
Douglass vs. Rathbone & Lyman.

Headnote

The proper mode of taking advantage of a variance between the condition of a bond as stated in the declaration, and the condition as set out upon oyer, is by demurrer.
Accordingly, where a suit was brought against the defendants as sureties in a bond given on appealing from a vice chancellor’s decree, and the condition as set out upon oyer was, among other things, that the appellant should pay “on demand, all costs and damages” &c., but the declaration, in stating the condition, omitted the words ‘f on demand" ; held, a material variance, of which the defendants might avail themselves by demurrer.
Held further, that the declaration was defective for not alleging a demand of the costs &c. according to the condition.
Debt on bond dated February 24th, 1840, in the penal sum of $250, which, after reciting that the New-York and Erie Rail
p. 144
Road Company had appealed from a decree of the vice-chancellor of the eighth circuit in a suit where the plaintiff was the complainant, was conditioned that the rail-road company should diligently prosecute the appeal, and pay to the plaintiff on demand all costs and damages that might he awarded against the company. In stating the condition of the bond in the declaration, the words “ on demand” were omitted. The plaintiff alleged for breach that the decree of the vice-chancellor was affirmed by the chancellor with costs to be paid by the company, amounting to $266,02, which neither the company nor the defendants had paid, but had neglected and refused so to do. No demand of the company was alleged. The defendants craved oyer, set out the bond with the condition, and demurred specially. The plaintiff joined in demurrer.
L. R. Marsh, for the defendants.
S. Stevens, for the plaintiff.

There is a material variance between the condition of the bond as stated in the declaration, and the condition as it is set out upon the oyer. The declaration omits to state that the rail-road company was to pay on demand. A demurrrer, after setting out the condition upon oyer, is a proper mode of taking advantage of the variance. (Rockefeller v. Hoysradt, 2 Hill, 616 .)[1] The declaration is also bad for not alleging that the costs had been demanded of the rail-road company. The defendants are sureties, and a demand of the principal is parcel of the contract. (Nelson v. Bostwick, ante, p. 37.) If there-has been no demand, the bond is not forfeited.

Judgment for the defendants.

(a) (a) See Cowen Hill’s Notes to Phill. Ev. 524,