Harrison v. Utley

Headnote

Undertaking in replevin — consideration — estoppel.

No consideration is necessary to support an undertaking given upon a claim for the delivery of personal property, pursuant to the Code, besides the claim itself. Certain property claimed by A was in the possession of B. In order to settle the dispute as to its ownership, it was agreed that B should bring an action claiming the delivery of the property. Accordingly an action was commenced and an undertaking was given, signed by the defendants in this action, conditioned for a return of the property or the payment of its value, the possession of the property by A being admitted by stipulation. None of the formalities required by the Code were complied with. The action in replevin having been decided in favor of A, he instituted this one upon the undertaking, the validity of which was denied by the defendants on the ground that it was without consideration. Held, that no consideration was necessary to support the undertaking, and that the defendants were estopped from disputing its validity.

Appeal from a judgment in favor of the defendants, entered upon the trial of this action by the court, without a jury.

The action was brought upon an undertaking, in an action of replevin, brought by the Rochester Water-works Company against the plaintiff and his late partner. By this undertaking the defendants agreed that the Rochester Water-works Company, the plaintiff in that action, would return the property involved in that action, 90,000 pounds of cast-iron water pipe, if a return should be adjudged, and pay to the defendants in that action such sum as might, for any cause, be recovered against said plaintiff. The

action, in which such undertaking was given proceeded to judgment in favor of the defendants therein, adjudging a return of the pipe to the defendants, or in ease it could not be- had, that they -recover of the plaintiff its value, $2,447.60, and costs of the action, $301.83.

An execution was issued upon this judgment, which was returned unsatisfied.

It appeared that, on the 9th of January, 1869, Messrs. Jones & Harrison recovered a judgment against Alexander Easton for $1,842.89, upon which an execution was issued, and the pipe involved in the replevin action was purchased by them. The pipe was claimed by the Water-works Company at the time, and it was agreed between the engineer of the company and Mr. Siddons, who represented Jones & Harrison, that it should remain upon a vacant lot, where it then was, and not be disturbed by either party without notice to the other. Subsequently the pipe was removed and laid by the company. The attorney of Jones & Harrison was about to take measures to recover the pipe when it was suggested that the Water-works Company should commence an action against Jones & Harrison, claiming the delivery of said pipe; and thereupon, and on or before July 7th, 1870, Mr. Bacon, as the attorney for the company, delivered to the attorney for Jones & Harrison the summons and complaint in the action, which resulted in the judgment and the undertaking on which this action was brought, and a stipulation fixing the value of the property and admitting that the defendants (Jones & Harrison) took possession of the same, and that the same was actually in their possession at the time of the commencement of the action. These papers were submitted to Jones & Harrison who instructed their attorney to appear for them in such proposed action, and adopted such proceeding, in lieu of proceedings on their part to recover the pipe.