#### C. L. Gerlaugh, Appellant, v. T. J. Ryan & Son, T. J. Ryan and H. R. Ryan.

1 Replevin: delivery bond: liability of sureties. Where the plaintiff in a replevin action elects to take a money judgment against defendant on his failure to return the property, he is not entitled to a judgment against the sureties on defendant’s delivery bond, where nothing is claimed because of defendant’s *227failure to appear and defend the action and no damages are adjudged against him for the wrongful detention of the property, and the sureties, in resistance to the motion for judgment against them, offer to return the property in conformity with the bond.

2 Same. A plaintiff in replevin waives delivery of the property by electing to take a money judgment against defendant for its value, and the sureties on defendant’s delivery bond áre re- ' leased from their obligation to deliver the property.

*Appeal from Shelby District*Court.— HoN. A. B. Thor-hell, Judge.

Friday, April 7, 1905.

The plaintiff in a replevin action elected to take judgment for tbe value of the property, and, after this was entered, moved for judgment against the sureties on the delivery bond. The motion was overruled, and plaintiff appeals.

*Affirmed.*

*Byers & Lockwood,*for appellant.

*Cullison & Robinson,*for appellee sureties.

Ladd, J.

All the property was taken under the writ of replevin except one bull, “ Master of the Ring,” of the estimated value of.$1,705, for which a delivery bond was executed, with L. F. Potter and Bradley McCord as sureties. Judgment was entered by consent against defendants, confirming the title in plaintiff to all the cattle described in the petition, and, by his election, for the value of the animal mentioned. Thereupon he moved for judgment on the delivery bond, and this was resisted by the sureties on the .grounds (1) that by electing to take a personal judgment against defendants for value plaintiff had waived compliance with the conditions of the bond, and (2) that both before and since the entry of judgment the sureties had tendered the bull in as good condition as when the action was com*228menced.” Tbe court, in overruling the motion, held that the taking of a money judgment did not release the sureties on the delivery bond, but that plaintiff was not entitled to judgment on such bond when the sureties, “in their resistance to such motion, are offering to return the property.” The condition of the bond in question was that defendant “ shall appear and defend the said action and deliver the said property to the plaintiff, if he recovers judgment therefor, in as good condition as it was when said action was commenced, and will also pay all costs and damages that may be adjudged against him for the wrongful detention of said property, then this obligation to be void; otherwise to remain in full force and virtue.” This was in strict conformity with section 4172 of the Code, which authorizes an officer serving a writ of replevin to leave the property in the possession of a defendant upon the execution of a bond *“*conditioned that he will appear in and defend the action, and deliver the property to the plaintiff, if he recovers judgment therefor, in as good condition as it was when the action was commenced, and that he will pay all costs and damages that may be adjudged against him for the 'taking or detention of the property.”

1. Replevin: delivery bond liability of sureties. To justify judgment against the sureties there must have been some breach of this bond. Nothing was claimed because of the failure of defendants to “ appear in the action a&d defend,” and no damages were “ adjudged against him for the taking and detention of the property.” Was there a breach of the agreement to *“*deliver the property to the plaintiff if he recover judgment therefor?” According to the resistance filed, the sureties tendered delivery of the bull in the condition exacted before and immediately after the entry of judgment against defendants. This was precisely what the bond required them to do. Section 4179 is the only statute authorizing a judgment for value instead, and it provides that “ when property is not forthcoming to answer the judgment, and for which a *229bond bas been given as Hereinbefore provided, and tbe party thereto so elects, a judgment may be entered against tbe principal and sureties in tbe bond for its. value.” Two conditions precedent are essential to tbe entry of judgment under tbis section — failure to deliver tbe property and an election to take judgment. As tbe first was obviated by tbe tender, plaintiff was not in a situation to avail bimself of tbe second.

Appellant argues that the rule should be tbe same as that wbicb obtains in entering judgment against tbe sureties on tbe replevin bond. But tbe statute in relation to that expressly directs that, “ if tbe judgment be against plaintiff for tbe money value of tbe property, it shall also be against tbe sureties on bis bond.” Section 4176, Code. And the obligation of tbe sureties of such bond is that be shall “ prosecute tbe action to judgment and return tbe property if awarded, and pay all costs and damages that may be adjudged against him.” Section 4167. Tbe word “ damages ” is not limited to “ taking or detention,” as in tbe delivery bond, but includes any that may be adjudgfed against the plaintiff. Tbe liability of tbe sureties is fixed by their obligation, and cannot be changed or enlarged by tbe conduct of plaintiff alone. See *Larabee v. Cook,*8 Kan. App. 776 (61 Pac. Rep. 815); *New England Furniture Co. v.*Bryant, 64 Minn, 256 (66 N. W. Rep. 974); *Hall v.*Tillman, 103 N. C. 276 (9 S. E. Rep. 194)*; Lewis v. McNary,*38 Or. 116 (62 Pac. Rep. 897).

2. Same. Even though be might elect to take a money judgment for value, tbis did, not change tbe condition of tbe bond exacting tbe delivery of tbe property only. But it did, in effect, amount to a sale thereof to defendants, ’ . . and vested title thereto m them. *Becker v.*Staab, 114 Iowa, 319; *Powers v.*Benson, 120 Iowa, 428. Thereafter tbe bull belonged to tbe defendants, and for tbis reason their obligation, as well as that of tbe sureties, to deliver to tbe plaintiff, ceased. By electing to take a money judgment be necessarily waived the delivery of tbe property, *230and, as a consequence, released the sureties from their agreement conditioned to deliver to plaintiff if “ he recovers judgment therefor.” The motion should have been overruled on both grounds. — ■ *Affirmed.*