
    ATTACHMENT — INSURANCE.
    [Cuyahoga (8th) Circuit Court,
    October 26, 1908.]
    Winch, Henry and Marvin, JJ.
    George M. Roosfeld, Admr. v. Bertha Glasgow et al. Bertha Glasgow v. George M. Roosfeld, Admr., et al.
    1. Anticipated Repudiation op Contract Ground for Attachment Against Nonresident.
    Attachment upon the ground of nonresidence under Sec. 5521 Rev. Stat., lies against the beneficiary of an insurance policy upon an allegation that the beneficiary has repudiated and refuses to carry out a contract to pay over to the estate of the insured the balance of the proceeds of such policy after paying a certain indebtedness of insured due the beneficiary together with advancements of premiums hy such beneficiary on such policy, and motion to dismiss the attachment, therefore, is properly-overruled.
    2.' Attachment Against Nonresident Assignee of Insurance Policy Properly Dismissed.
    The assignee of a policy of life insurance not being a party to a contract, between the insured and his beneficiary, as to the disposal of the proceeds thereof, an attachment against him upon the ground of nonresi-dence under Sec. 5521 Rev. Stat. is properly dismissed.
    [Proof of this decision and syllabus has been submitted to Judge Marvin and corrected.]
    Error to Cuyahoga common pleas court.
    Higley & Maurer, for Bertha Glasgow et al.
    C. W. Noble, for George M. Roosfeld et al.
   MARVIN, J.

Both of these cases grow out of proceedings upon motions to discharge an attachment made by the court of common pleas in a suit pending in that court, wherein George M. Roosfeld, as administrator of the estate of William McQueen Teetzel, deceased, brought suit against Bertha Glasgow and James V. Teetzel. The petition in the case alleges that a policy of insurance upon the life of William McQueen Teetzel in the State Life Insurance Company of Indiana, was taken out in the sum of $5,000; that the beneficiary named in the policy was the defendant, Bertha Glasgow, the sister of the insured; that a contract was made between the insured and his said sister by which it was agreed that this policy should be for the benefit of said Bertha only to the extent of an indebtedness of $850 owing by the insured to said Bertha, and evidenced by a promissory note, and also as security to her for whatever amount she might pay on premiums on said policy. The petition further says that Bertha paid the premiums on said policy in such an amount as that., together with the $850 indebtedness, the debt to her, in the aggregate, from the deceased is $1,400; that the contract between Bertha and the insured was that, except to the extent necessary to pay this indebtedness to her, the policy should be for the benefit of the estate of the insured; that upon his death she should collect the amount owing upon the policy, pay herself'what should then be due to her and pay the balance over to the representative of the estate of the insured. The petition avers that the insured is dead; but does not aver that the amount ■owing upon the policy has been paid, but says that, upon the facts, Bertha is indebted to the plaintiff in the sum of $3,600. The petition further avers that the defendant, Bertha Glasgow, has assigned said policy to James Y. Teetzel, her brother; that said assignment was without consideration and done simply for the purpose of convenience to said Bertha Glasgow, and that the said James Y. Teetzel has no interest whatever in said policy. The prayer of the petition is for judgment against the two defendants in the sum of $3,600.

On the day of the filing of the petition the plaintiff filed an affidavit, setting out substantially what is averred in the petition, and averring further that said Bertha has repudiated her said contract to pay the avails ■of this policy, after deducting the amount due to her on the promissory note and the premiums paid by her, and that she refuses to carry out the same. It further avers that each of said defendants is a nonresident of the state of Ohio: that the claim upon which the suit is brought is just and that he ought to recover thereon the sum of $3,600. It is further averred in the affidavit that the State Life Insurance Company of Indiana is indebted to said defendants in the sum of $5,000.

Upon the filing of this affidavit an order of attachment was issued against the two defendants, and garnishee process was issued and served upon an agent of the insurance company.

Each of the defendants, appearing for the purpose of the motion only, filed a motion, to dissolve this attachment, the court sustaining the motion of James Y. Teetzel and discharging the attachment as against him,-but overruling the motion of the defendant, Bertha, and sustaining ’the attachment as against her. Thereupon Bertha comes into this court seeking to reverse the judgment overruling her said motion, and the plaintiff comes into this court seeking the reversal of the judgment discharging the attachment as to James Y. Teetzel.

First: As to the attachment against Bertha. The ground of the attachment being nonresidence of the defendant, it must appear, under Sec. 5521 Rev. Stat., that the claim is for a debt or demand arising upon' contract, judgment or decree, or for causing death, or a personal injury by a negligent or wrongful act. It is urged here on behalf of Bertha that the claim made against her does not bring it within these provisions of the statute. Of course if it does, it is because it is upon contract. It is said, however, that if it is upon the contract set out in the affidavit and in the petition, that that contract only requires ’ payment to be made1 by her when she has recovered from the insurance company, but it is settled that a suit brought for the breach of a contract is a suit brought upon that contract. See Halbert v. Armstrong, 7 Circ. Dec. 705 (14 R. 296), where the suit was for a breach ,of a contract of marriage. Also Pennsylvania Co. v. Peoples, 31 Ohio St. 537, where the suit was based upon the contract of the railroad company to carry a passenger, and a breach was alleged in that defendant failed to carry the passenger in safety. But, it is said, there was no breach of the contract here, because nothing was to be paid by Bertha until she had recovered from the insurance company, and therefore, until she does so recover from the insurance company, she owes nothing to the plaintiff. It is held, however, in numerous cases that there may be an anticipatory breach by a renunciation of a party to a contract and an absolute refusal to be bound by it, and where that renunciation is complete the other party may bring suit, founded upon such renunciation. See Boehm v. Horst, 91 Fed. Rep. 345 [33 C. C. A. 550].

The second clause of the syllabus reads: “Where one party to a contract gives notice of his intention not to perform, the other is justified in treating such action as an anticipatory breach, and may sue for damages, without waiting for the time of performance to arrive, or making a tender of performance.”

Also, McCormick v. Basal, 46 Ia. 235, the first clause of the syllabus reads: 1 ‘ Where before the time of performance of a contract the promisor expressly renounces it, the promisee is authorized to treat it as broken,, and may maintain an action for the breach at once.”

Other authorities, to the same effect, are found in 9 Cyc., beginning' at page 635.

In view of the allegation of the affidavit that “said Bertha Glasgow has repudiated said contract and refuses to carry out the same,” we hold that the plaintiff had a right to begin the action; that it was an action upon contract, in the sense in which that word is used in the statute, and that with the other allegations of the affidavit, the plaintiff showed a proper case for the .allowance of the attachment, and that the action of the court in overruling the motion to discharge the same was right, and that judgment is affirmed.

As to the motion made by James Y. Teetzel, the court was clearly right in sustaining that motion and discharging the attachment. There was no contract between the plaintiff and James Y. Teetzel, and the ground of the attachment being the nonresidence of Teetzel, it is clear ■that the plaintiff was entitled to no attachment, as against him.

It was urged on the hearing that because of the failure of Teetzel ■to file the bond required by See. 5563b Rev. Stat., his case was not properly in this court. Since the result here must be that the judgment of the •court of common pleas is to stand, because if we dismiss the proceeding, it would be left to stand, and if we affirmed the judgment, it will stand, we affirm the judgment below without committing ourselves upon the ■question of whether bond should have been given by the plaintiff in error, mnder Sec. 5563b.

Winch and Henry, JJ., concur.  