Chamberlain v. Applegate

Headnote

Undertaking on appeal—construction of—liability of sureties undm'— Code, §§ 335, 338 —Measure of damages.

An action was brought by a vendor, to compel the specific performance of a contract for the purchase of land, in which judgment was recovered establishing the amount due on the contract, adjudging that the defendants should be barred and foreclosed of all right, claim, etc., in the land, and directing a sale thereof by the sheriff, and payment to the plaintiff out of the proceeds of such sale of the amount adjudged to be due, with interest and costs. No provision was made for the payment or recovery of any deficiency which might arise on the sale. The defendants appealed to the General Term, and gave the undertaking upon which this suit was brought. It was in the form prescribed by section 335 of the Code, instead of that prescribed by section 388. It recited that a judgment had been recovered against the defendants, and provided for the payment of costs, and the amount directed to be paid by the judgment, and all damages awarded against them on appeal.

The judgment was affirmed, but no damages were awarded. Subsequently the land was sold, but did not bring enough to pay the amount due to the plaintiff. This action was brought to recover the deficiency. Prior to its commencement, all the costs of the original action had been paid.

Held (l),that though the undertaking was not in the proper form, yet, as it secured" the end for which it was given, and stayed all proceedings on the judgment, it was valid as against the defendants who subscribed it; (3), that as no amount was directed to be paid by the judgment by the defendants, they were only liable for the difference betwen the amount bid for the land at the time of sale, and the amount which would have been bid at the time at which the judgment directed it to be sold, with interest on such amount to the time of the actual sale; that as no difference was proved, it could not be presumed to exist, and the plaintiff was only entitled to nominal damages; (3), that the defendants were entitled to costs.

Appeal from a judgment entered at the circuit, in a cause tried by the court without a jury, by which the plaintiff recovered nominal damages only, and the defendants recovered costs.