
    
      William P. Butler and others vs. Benjamin Baird.
    
    Bond conditioned to produce certain articles, and that, when produced, they "shall be of the value of seven hundred dollars, the valuation now placed upon them the articles when produced were sold at public auction, and bid off by the obligor for $165: in an action on the bond, hdd, that the sale was not conclusive evidence of the value, and that defendant, the obligor, might, by other evidence, shew the true value.
    
      Before Warblaw, J. at Edgefield, Fall Term, 1851.
    The report of his Plonor, the presiding Judge, is as follows.
    “ In 1845, the plaintiffs became sureties of James Cochran, for money borrowed by him from the Bank of Hamburg to establish a weekly newspaper, called the Hamburg Republican. For their indemnity, they took from him a mortgage of his printing press, type and the appendages of his printing establishment. Cochran published the paper about two years, and then, either by contract with him or by a sale under the mortgage, Dr. Bobo acquired possession of the mortgaged property under an engagement to pay $700 for it. After publishing the paper for a short time, Bobo sold and delivered the mortgaged property to the defendant, who, in ignorance of the existence of the mortgage, as he alleged, paid the price of $700 to Bobo, and continued the publication of the paper. In August or September, 1847, the terms of the sale to Bobo not having been complied with, Spires, as agent of the plaintiffs, under the mortgage, levied upon the mortgaged property then in the defendant’s possession. The defendant filed against the plaintiffs a bill in Equity, and made application to the Commissioner in Equity for an injunction. The Commissioner granted an order for a temporary injunction, and in pursuance thereof, took from the defendant, Baird, and two sureties, a bond. Copies of this order and bond are hereto annexed as parts of this report,  The injunction was afterwards dissolved, and the bill dismissed without costs, by a Chancellor. Spires then having made due advertisement; in September, 1849, sold the mortgaged property, at public auction, in Hamburg. Only six or seven persons were present, amongst whom were the defendant and Christie, one of the plaintiffs, which two were the only bidders. The defendant became the purchaser at his bid of $165; and the plaintiffs brought this action on the bond.
    “ The declaration demands the penalty of the bond : the plea after oyer of the condition, avers general performance: the replication alleges for breach, that in June, 1849, a decree was made adverse to the claim of Baird, and the printing establishment and its appendages, when afterwards produced by him, were not of the value of $700, but on sale produced only $165; The rejoinder traversing the breach, says that they were worth $700 when produced, and issue is joined thereon.
    “ The plaintiffs having shown the bond and the sale to defendant, for $165, insisted that they had maintained their action and were entitled to recover the difference between $700 and $165. I, however, held that the defendant was not bound by the bond to abide the result of a sale, or to insure to the plaintiffs $700 as the proceeds of a sale: — that a sale was necessary only to bar Cochran’s equity of redemption, and by taking a release of that equity, or holding for two years as mortgagees in possession, the plaintiffs would have been absolute owners without any sale: — that the deiendant might not have attended the sale, and the plaintiffs might have become purchasers for $5 or less: — that the bond guarded against the value of,the property being reduced below $700, either by deterioration from use or depreciation from change of times, but left either party free to make a bargain at the sale if he could: — -that a prudent course for the plaintiffs, would have been to have had a fair appraisement of the property made when it was produced by the defendant; and that if no other evidence should be offered, I would grant the motion which the defendant had made for a nonsuit.
    “Evidence as to the condition and value of the property when produced was then offered on both sides, the fair result of which, I think, was that the value was then about $600.
    “ In argument, the plaintiffs again urged upon the jury the views which they had before taken of the intention of the commissioner, the understanding of the parties, the justice of their claim, and the conclusiveness of the sale as evidence of value.
    “I directed the jury that the burden was on the plaintiffs to show the breach of the condition : — that the issue was whether the value of the moitgaged property, when produced, was less than $700: — that if it was not less, the verdict should be for the defendant; if it was less, the verdict should find for the plaintiffs, the difference: — and that in ascertaining the value, the sale to Bobo and both sales to the defendant, should be considered as well as all the evidence which touched the question.
    “The jury found for the plaintiffs $100.”
    The plaintiffs’ appealed, and now moved for a new trial, on the following grounds, viz:
    1. That the plaintiffs were entitled to recover under the breach of the bmd alleged, the difference between the amount for which the printing establishment was sold by the agent, Spires, to wit: $165, and $700, the sum which the defendant undertook by his bond that said establishment should yield to the plaintiffs.
    
      2. Because his Honor erred in charging the jury that the plaintiffs were bound to prove that the printing establishment was of less value than seven hundred dollars, and that the plaintiffs ought to have had said establishment formally appraised before the sale, — whereas, it is respectfully submitted that the burden of proof in this respect was on the defendant, and under the peculiar character of the property, and the circumstances attending the granting the injunction, that a fair public sale was the standard of value which was contemplated by the parties themselves, and that this was a question of fact for the jury, which his Honor erred in not submitting to them.
    3. Because the evidence furnished by the sale by Spires, was, considering the nature of the property and the acts of the parties, the best that could be furnished on the part of the plaintiffs, and so his Honor ought to have instructed the jury.
    
      Bauskett, for appellants,
    cited Chit, on Contracts, 74 note; Jac. L. D. Tit. value; 7 Johns. It. 71.
    Carroll, contra.
    
      
       The obligatory part of the condition of the bond is recited in the opinion delivered in the Court of appeals: the following is a copy of the order.
      “ Upon hearing the bill, answer and affidavit and argument of counsel, — it is ordered that a writ of injunction do issue to restrain the defendants from seizing and selling the printing materials and establishment mentioned in the bill, under or by virtue of the mortgage therein mentioned, the plaintiff, Benjamin Baird, first, however, entering into bond, with adequate surety, to the defendants, in the penalty of fou teen hundred dollars, with condition to be void, if the plaintiff shall produce the said printing establishment and its appendages to answer the decree of the Court, if the same shall be adverse to the claim of the plaintiff, the said printing establis iment and its appendages to be, when so produced, in as good condition as they arr now in, and to be then of value equal to their present value, which, with the cons rnt of the said Benjamin Baird, is here estimated at the sum of seven hundred dollars.”
      This order was recited in the condition of the bond.
    
   The opinion of the Court was delivered by

Withers, J.

The plaintiffs were mortgagees of a printing press and its appendages, which were in possession of defendant. They were about to sell the mortgaged property, and at the instance of defendant were enjoined by the Commissioner in Equity, the defendant having first executed, to wit: in September, 1847, a bond in favor of these plaintiffs, in the penal sum of fourteen hundred dollars, with the following condition as a defeasance, that is to say: The condition of this obligation is such, that if the said printing establishment and its appendages shall be forthcoming to answer the decree of the said Court in the said cause, if the same shall be adverse to the claim of the plaintiff Baird, and if the said printing establishment and its appendages, when so produced, shall be in as good condition as they are now in, and shall be of the value of seven hundred dollars, the valuation now placed upon them, with the consent of the said Baird,” andsoforth.

In June, 1849, a decree, adverse to the claim of Baird, was pronounced; the mortgaged property was required to be pro duced, and in September, 1849, was sold for $165 by the agent of plaintiffs, the mortgagees, the defendant in this action being the purchaser at that price : he and one of the plaintiffs being the only rival bidders among some half dozen persons who attended the sale.

The bond already referred to is the cause of action now ; the breach charged is, that the printing establishment and its appendages, when produced by defendant, were not of the value of $700, but on sale produced only $165. The traverse of the breach is, that they were worth $700 when produced; and upon this issue is joined.

The contest is upon the question, whether the sale is sufficient and conclusive evidence of the breach alleged, as the plaintiffs urged below, and affords the true measure of damages; or (as defendant contended) whether other evidence of the actual value of the property, should not be required to meet the true interpretation of the bond. The judgment of the Circuit Court was with the defendant; other evidence was produced on both sides; the whole being referred to the jury, led them to estimate the value of the mortgaged property, when produced, at $600, and they found for the plaintiffs a verdict for one hundred dollars.

The appeal to this Court rests upon the question stated ; and it is urged to us that the sale furnishes the true and only standard of damages.

We cannot concur in this view for the plaintiffs.

The recital found in the condition of the bond puts the fact beyond question, (even allowing that the obligatory words of the condition do not,) that the period of time when the value of the property was to be ascertained, that is to say whether it was below or equal to $700, was when the same should be produced ; and that was to be done when and if the decree of the Court of Equity should be adverse to the defendant. The language in the recital is, when produced to be in as good condition as they are now in, and to be then of value equal to their present value.”

The defendant could not enforce a sale of this property under the mortgage in behalf of the plaintiffs. Suppose it never had been sold ; or the equity of redemption being released, the plaintiffs had taken possession of it as their own, or had otherwise acquired the entire interest, here would be a case in which no standard of damages could be derived from a sale. When the press and. appendages had been produced by defendant, suppose another injunction upon a sale had been obtained by a third person, and the sale thus delayed for a long space of time, is it not manifest that the defendant would have been liable nevertheless, on the terms of his bond, if the value of the property, when he produced it, should be proved to be below the standard of $700? Then it follows that a sale could not have been the only means of ascertaining whether the defendant had become liable for a depreciation of value below the fixed sum.

We think, therefore, the Circuit Court was right in admitting other evidence, in addition to that afforded by the sale, to determine the question whether the property in question was worth $700 “ when produced,” and if not, to designate how much less. Upon all the evidence adduced the jury have concluded that there had been a depreciation of $100, and so much they have found for the plaintiffs.

We stand uncommitted upon any question that may be hereafter raised, in a like case, as to the power of a Commissioner in Equity to take such a bond under the statutes authorizing him to grant injunctions; as to the right of an obligee to enforce such a bond at law; as to the right to do so until authorized so to proceed by order or permission of the Court of Equity; and as to what pleading may exclude such objections.

In this case we think justice between the parties has been reached on circuit, in conformity to law, and therefore the motion is refused.

O’Xeall, Evans, Wardlaw, Frost and Whitner, JJ.— concurred.

Motion refused.  