Opinion
06-25-1888
MOORE v. HAMMELL et al.
P. L. Voorhees, for petitioner. Garrison & French, opposed.
On petition.
Moore and Hammell were engaged as partners in the draying business. In 1881, Moore filed a bill for accounting, etc., and, several defendants showing judgments against the firm, a receiver was appointed by the chancellor to windup the business. Afterwards an order was granted to Moore whereby he was given the privilege of taking possession of certain goods in the keeping of the receiver upon giving security to the chancellor in the sum of $6,000 for their safe return when demanded by the court. The complainant, however, sold part of the goods, and the remainder were sold by the receiver for the sum of $1,932. The amount of the inventory of the property loaned to Moore was $4,683.50. The First National Bank of Camden, one of the judgment creditors and defendants, now files a petition asking that the sureties upon the bond of Moore be made parties to this suit in order that, upon an accounting to ascertain what the correct amount due from Moore for the articles he sold should be, they would have the opportunity to present any defense thereto. The sureties claim a right to be heard on the original case before they became sureties, and say that a supplemental bill should be filed to give them full opportunity to defend; that the petition limits them to that part of the case transpiring since the execution of the above-mentioned bond.
P. L. Voorhees, for petitioner. Garrison & French, opposed.
BIRD, V. C. This petition is filed by the bank, one of the defendants, with a view of ascertaining the amount due on a bond given by the complainant in said cause. Certain goods were in the possession of a receiver. The complainant procured an order by which he was empowered to take possession of said goods, they being horses, wagons, harness, and the like, and to use the same, upon his giving security to the chancellor in $6,000 for the return of the goods, when ordered by the court, in as good condition as they then were, loss by unavoidable accident alone excepted, he to be at all expense of keeping them. The court of errors has said that this court had a right to make such order. Moore v. Diament, 41 N. J. Eq. 628. The court of errors also said: "He is to account to the receiver for the value of the goods at the time they came into his possession, less loss, if any, by unavoidable accident. The appraisement made by the sheriff's appraisers is not evidence of this value. If the property has been sold, then the difference between the proceeds of such sale and such value of the property as ascertained is the standard of Moore's liability." Id. The court then directs this court to ascertain the value of said goods on this principle. The object to be attained is made plain. Now, by what method of procedure shall it be reached? As stated, the defendant files his petition, asking that Moore's sureties may be made parties for the purpose of effecting the object in view, and that an accounting may be had as above indicated. The sureties say that this cannot be done by petition, but can only be done by an original bill in the form of a supplemental bill; citing Coop. Eq. Pl. 75; Welf. Eq. Pl. 191; Mitf. Eq. Pl. 62; Story, Eq. Pl. § 345. As I understand the argument of counsel, they insist that this method must be pursued so as to give these sureties an opportunity to make defense to that portion of the case which has already been disposed of, so far as their principal, Moore, is concerned. In other words, if the argument has any force, they claim the right to open the case so far as to allow them to be heard. This view cannot be sustained. Up to the point of ascertaining the value of the goods, they have no right to be heard, unless they can show fraud from which they will suffer. Their contract does not bind them to another view, nor does it bind any other person to any other view. They bind themselves that Moore shall return the goods in a certain condition if a decree goes against him. They are bound to the same extent that their principal is. See Fowler v. Scott, 11 Ark. 675, 687, 688; Oelrichs v. Spain, 15 Wall. 211; Towle v. Towle, 46 N. H. 431, 434; Heard v. Lodge, 20 Pick. 53; Rapelye v. Prince, 4 Hill, 123; Bowling v. Polack, 18 Cal. 625; Warner v. Matthews, 18 Ill. 86. The latitude tolerated in some instances, in such cases, is shown in Methodist Church v. Barker, 18 N. Y. 463, and in Jordan v. Volkenning, 72 N. Y. 300. A supplemental bill is not necessary. Not a single ground' upon which suchbills rest, is present in this case. The ordinary and proper course would be to refer the case to a master, were not the sureties interested in the amount found due on the bond. This fact makes it proper that a petition should be filed to give them full notice of the fact that such step is being taken, and to give them an opportunity to be heard. This step is not necessary to bring them in as parties; for, by their act in signing the bond, they became parties to the suit, or submitted themselves to the control of the court. See Moore v. Diament, supra. The petition may be filed. On application a day will be fixed for hearing.