This is a suit against the surety on a replevin bond.
In the replevin suit the defendants therein (plaintiffs-appellants herein) filed a counter-claim setting up a claim on an open account against plaintiff in that suit. The matter was referred to a referee, who found in favor of the counter-claimants in the sum of $2,220.31.
This suit was brought to recover the amount of the judgment on the counter-claim against the surety on the replevin bond. The trial judge held that there was no liability on the bond to pay such judgment. I think he was right.
In the complaint, plaintiff sets up the bond, then sets up the judgment on the counter-claim, an order for the return of the goods, failure to return the goods, assignment of the bond, and demands judgment for the amount of the judgment on the counter-claim. Defendant answered, denying liability to pay the judgment sought to be recovered.
The case was submitted to the trial judge, sitting without a jury, on an agreed state of facts. This clearly sets out that —
"The defendants in the replevin suit filed a counter-claim for damages for breach of contract, and on May 15th, 1928, a rule was entered in that suit in the Passaic County Circuit Court, referring to a Supreme Court commissioner, to take and state the amount between the parties. Such subsequent proceedings were had under said rule which terminated in a judgment in the sum of $2,220.31 for the defendants therein, the present plaintiffs, against the Clarion Knitting Mills, Incorporated, by reason of said counter-claim."
It also appears there was a rule for the return of the goods. It does not appear that there was a nonsuit in the replevin suit, or other judgment touching the right of possession or the value of the goods. The state of facts further states:
"The judgment entered in this cause was for damages on the counter-claim as ascertained by the Supreme Court commissioner who was appointed to take and state the account between the parties.
"No writ of inquiry was issued to assess the damages for *Page 437 the failure to make the return, nor was any judgment for money damages by reason of the failure to make such a return."
The state of facts further shows that obligation of the bond, the order for the return of the goods, failure to make return, and that thereupon plaintiffs herein "demanded the amount due on the judgment. The defendant, the United States Fidelity and Guaranty Company, a corporation of the State of Maryland, have failed and refused to pay the same whereupon suit was instituted on the said replevin bond given by the United States Fidelity and Guaranty Company, a corporation of the State of Maryland, for the recovery of the amount due on the judgment, namely, $2,220.31."
The appellants proceed upon the theory that the surety on the replevin bond is liable to pay a judgment obtained by the defendants in the replevin suit on a claim wholly unrelated to the question of the right of possession of the goods involved in that suit. If this were a suit for damages for the failure to return the goods, a different situation would be presented. But the agreed facts leave no doubt that what appellants sued for and seek to recover is their judgment on the counter-claim, and that the only proofs submitted to the trial judge were in support of such claim.
There being no proofs before the trial judge upon which he could find defendant liable as claimed, I think he was obliged to find for the defendant, and that the judgment should be affirmed. I am authorized to say that Chancellor Campbell and Judge Wells agree with the conclusion herein reached.
For affirmance — THE CHANCELLOR, DONGES, WELLS, JJ. 3.
For reversal — TRENCHARD, PARKER, LLOYD, CASE, BODINE, BROGAN, VAN BUSKIRK, KAYS, DEAR, KERNEY, JJ. 10. *Page 438