Daily capital journal. (Salem, Oregon) 1903-1919, 1911-09-29
Moore '. Laehmund, ct al, Marion
County.

County.
G. J. Moore, respondent, V. Louis
I.achmund and Julius Pincus, doing
business. under the firm name and
style OF Louis Lachmund e Co., and
Russell Catlin, appellants. Appeal
from the circuit court for Marion
county. The Hon. Geo. il. Burnett,
Judge. Argued and submitted Sep
tember 6, 1911. A. o. Condit and Geo.
G.. Bingham, for respondent. Thomas
Brown carson & Brown, on brief)
for appellants Eakin, G. j. At
hrmed.
Decided, September 26, 1911.
This is an action to recover dam
ages suffered by plaintiff by reason
OF the breach of an undertaking Civ
en- on the issuance Of temporary in
junction in the case OF Lachmund
and others against G.. j. Moores, Re-
becca A. Moore, and G. y. Nash.
Plaintiffs in the latter case brought
suit against defendants upon the con-
tract, dated March 10, 1906, provid-
ing for the cultivation, harvesting
and sale, by defendants to plaintiffs,
of $4,000 pounds of hops, and on Sep
GJg lUVut pAdlhAlhp pAbNhANu
the preliminary injunction, enjoining
defendants from selling the hops,
pending litigation. On December
21st, thereafter, the circuit court rem
dered a final decree in the suit
against defendants for the sum of
$500, with interest and costs, and in
the decree the injunction was made
perpetual. The undertaking for the
Injunction being in the following
words Whereas, the above named
plaintiffs commenced suit In the cir
cult court for Marion county, Oregon, |
Department No 2, against the above
named defendants, and have applied
to the circuit court for a writ of in
junction to restrain the defendants
from doing certain acts complained
OF, particularly set forth In their said
complaint, and whereas the plaintiffs
are desirous that said writ Of ipjunc
tiOn should Issue as prayed for. Now,
therefore, we, Louis Lachmund &
Company, plaintiff, as principals, and
Russell Catlln, as surety do hereby
undertake. and promise that the
plaintiffs will pay all costs and dis
bursements that may be decreed to
the defendants, and such damages,
not exceeding the sum Of $1750, as
they may sustain by reason of the in
junction, II the same be wrongful or
without sufficient cause. Dated this
Goth day of September, 1906" (Sig
natures.)
On appeal to the supreme court by
defendants, the decree was reversed
and the injunction dissolved on
March II, 1908 Prior to the decision
Of the supreme court namely, on jan
uary 16, 1907, the hops were sold on
an execution issued upon the decree,
for the sum of $l075, Of which $11
were applied upon the expenses of
the sale On May 23, 1908, after the
decision Of the supreme court, $1064
the proceeds of the hops-were
paid to G. j. Moore, who brings this
action to recover upon the undertake
ing the damages suffered by reason
of the injunction, namely, the value
OF the hops at the time the injunc-
tiOn was issued, 17c a pound, less the
amount received by him from the eX-
ecution sale,
AT the trial plaintiff offered in evil
dence deed, dated March II, 1906,
frorn RebecCa A. Moore, conveying
the land, upon which the hops were
grown, to G. j. Moore; also the as
signment OF the lease from G. Il,
Nash to G, ]. Moore, dated Septem-
ber 10. 1906; the complaint In the
suit; the undertaking for the injunc-
tion: the decree; the execution Is
sued upon the decree; and the sher-
iff's return thereon. Judgment was
rendered for plaintiff in the sum of
$1,000. Defendants appeal,
Ealin, c. j. IL Is first contended
by defendants that there is var
lance between the undertaking Of
fered In evidence and the allegations
OF the complaint, to the effect that
the obligers undertake to pay this
plaintiff all costs, damages, etc; and
that by It's terms the undertaking is
made payable to defendants in the
suit. namely, G. j. Moore, Rebecca A.
Moore and C. 10. Nash The under
taking Is set out as an exhibit and
made part OF the complaint. We
do not deem this variance In view
Of the fact that the undertaking Gre
ates a liability In favor OF any one of
the defendants in the suit, The rem
cd was not confined TO liability run
ming to all the defendants jointly.
Subsequent to the execution Of the
lease, plaintiif became the owner OF
the land, thus succeeding to the in
terests OF Rebecca A. Moore, and on
September 10, 1906, prior 60 the com.
moncement Of the suit, Nash assigned
the lease 20 plaintiff. whereby he be-
came the sole owner OF the hops,
and, by the authority of Ruble v.
Coyote G, 4 s. M, Co., 10 Or. 80, and
Sec. 81 l.. o. L.. the real party In in
terest may sue alone on the under
taking. To the same effect Is SUM-
mers v. Parish. 10 Calf S47, SOL,
where Il is held that though given
to all the obligers by name. and us
ing no words directly expressing
several obligation. yet necessarily
creates a several liability-the de-
sign OF Il being TO secure each and
all OF the obligees from damage or
injury (otherwisel il would
operate very harshly. and in many
cases, amount 10 no security at all,
II reeoveries could only be had for
joint Injury
Our statute, Sec. 81 L. o. l.. has
done away with the necessity OF fol-
lowing the old form Of action, which