§ 356. ANSWER. FORM No. 833-Defense of failure of consideration. [Title of court and cause.] The defendant answers the plaintiff's complaint [or petition], and alleges: 1. That he gave the bond mentioned therein to the said A. B. solely in consideration of the performance by said A. B. of the covenants and conditions upon his part, in an agreement then made between them, of which agreement a copy is annexed hereto, marked "Exhibit A," and made a part of this answer. 2. That this defendant on his part duly performed all the conditions of said agreement. 3. That the plaintiff failed and neglected to perform the conditions of said agreement on his part to be performed, in this: [Here allege the breach as in an action upon the contract.] [Concluding part.] Form of complaint in an action on an undertaking given under section 511 of the Kansas Code of Civil Procedure (Gen. Stats., p. 730): Doyle v. Boyle, 19 Kan. 168, 169. Form of answer in an action by a trustee upon a bond for a deed: McIntosh v. Johnson, 8 Utah 359, 31 Pac. 450. Form of complaint by surety on an attachment bond: Long v. Sullivan, 21 Colo. 109, 40 Pac. 359. Form of petition in an action on a bond, brought by plaintiff as the legal representative of a deceased person: Tittman v. Green, 108 Mo. 22, 27, 18 S. W. 885. Form of complaint in an action upon a bond given upon a partnership agreement: Remington v. Cole, 62 Cal. 311, 312. Form of bond in an action in ejectment in which the defendant claims under a guardian's sale, the plaintiff contending that the guardianship proceedings were vold: Larimer v. Wallace, 36 Neb. 444, 449, 54 N. W. 835, 837. Form of bond in an action thereon, said bond having been executed in pursuance of the provisions of section 1030 of the Nebraska Code of Civil Procedure: Morrison v. Boggs, 44 Neb. 248, 249, 62 N. W. 473. Form of bond given in probate: Kelley v. Seay, 3 Okla. 527, 41 Pac. 615. Form of supersedeas bond given in forcible entry and detainer proceedings, set forth, and held sufficient, and judgment in an action thereon affirmed: Hinckley v. Casey, 54 Wash. 34, 102 Pac. 1051, 1052. Form of guaranty bond in an action to recover on moneys paid thereon in satisfaction of mechanics' liens: McMenomy v. White, 115 Cal. 339, 47 Pac. 109. For an agreed statement of facts in an action by a municipality upon the official bond of a city clerk, see Lowe v. City of Guthrie, 4 Okla. 290, 44 Pac. 198. § 357. ANNOTATIONS.-Bonds and undertakings, and actions thereon. 3, 4. Complaint in an action upon a bail bond. 1. ACTIONS.-Essentials of a complaint in an action upon a bond.-The elements of an action on a bond to recover the penalty thereof, and consequently the essential matters to be alleged in the complaint are: 1. The execution and delivery of the contract or obligation to which the bond was incident, and for which it was given to insure execution. 2. The execution and delivery of the bond. 3. Failure of the defendant to perform his contract, or failure of title, or any other state of facts showing default in the defendant in relation to the contract, and from which the plaintiff has suffered detriment. 4. The nature and character of damages to the plaintiff growing out of defendant's failure or fault in connection with the contract, with a special valuation so as to advise the defendant fully of the issues he is expected to meet in regard to damages: Adapted from Kumblad v. Allen, 51 Wash. 425, 99 Pac. 19. 2. Filing of bond must be pleaded.-A complaint in an action upon a bail bond must, in addition to other matters, contain the necessary averment that the undertaking declared upon was filed by the clerk of the court, or with the proper officer. Until this has been done no judgment of forfeiture can be given or rendered: Malheur County v. Carter, 52 Ore. 616, 98 Pac. 489, 491; Belt v. Spaulding, 17 Ore. 130, 20 Pac. 827. 3. Complaint in an action upon a bail bond should show the occasion for the taking of the bond; the criminal proceeding commenced or pending in which said bond was given; the fact that an examination had been had before an officer qualified by law to hold an examination or to admit to bail; that upon such examination, or otherwise, it was held or adjudged that there was probable cause for believing the defendant guilty of some specified charge; that the defendant was held to answer the charge; that he was admitted to bail thereupon; that bail was given for the release of the defendant; that the undertaking was filed with the clerk of the court; that the defendant did not appear thereafter to answer to the charge, but made default, and that the undertaking was thereupon declared forfeited by the court; that demand on the defendants for payment was made, and that they failed to respond thereto: Malheur County v. Carter, 52 Ore. 616, 98 Pac. 489, 491. 4. To constitute a good cause of action on an undertaking for bail, it is necessary to allege that defendant was charged with a crime, that an examination was had, and that he was held to answer the charge: Malheur County v. Carter, 52 Ore. 616, 98 Pac. 489, 491; State v. Logoni, 30 Mont. 472, 76 Pac. 1044. 5. Demand in action against surety.Demand is necessary before suit where the action is against a surety: Mullally v. Townsend, 119 Cal. 47, 51, 50 Pac. 1066; Pierce v. Whiting, 63 Cal. 538, 542, (against sureties on attachment bonds). 6. Sufficient pleading of demand. Where the complaint in an action against sureties alleged demand as follows: "That they paid the plaintiff the said judgment, and demanded of them the fulfilment of the obligation 88 expressed in the said undertaking"; held, that this was sufficiently specific and certain to charge the sureties with liability upon their obligation: Mullally v. Townsend, 119 Cal. 47, 52, 50 Pac. 1066, (against sureties on attachment bond). 7. Non-payment of damages a necessary allegation.-Non-payment of damages alleged to have accrued is a necessary averment in an action upon an attachment bond. Non-payment being a breach, it is of the substance of the action, and therefore must be alleged: State ex rel. Rife v. Reynolds, 137 Mo. App. 261, 117 S. W. 653, 654; Morgan v. Menzies, 60 Cal. 341; Church v. Campbell, 7 Wash. 547, 35 Pac. 381. 8. Action by assignee of Judgment.An assignee of a judgment can not recover on an undertaking given to stay Form No. 834. On a subscription agreement. (In general)... 1432 Form No. 836. Defense of denial of execution of subscription agreement .... Form No. 837. Defense of fraud in obtaining agreement.... 1433 1434 1434 1434 1434 § 358. COMPLAINTS [OR PETITIONS]. FORM No. 834-On a subscription agreement. (In general.) [Title of court and cause.] Plaintiff complains of the defendant, and for cause of action alleges: 1. [If plaintiff is a corporation, so allege.] 2. That the plaintiff, in the month of 19 was proposing and contemplating the construction of [here state the nature of the proposed construction or improvement]. 3. That the defendant and others were desirous that plaintiff should construct said [here specify], and they requested plaintiff to construct and complete the same; that, for the purpose of enabling the plaintiff to do so, the defendant and others made and executed to plaintiff their agreement and subscription in writing, whereby the defendant, and each of said other subscribers, respectively, promised to pay to plaintiff the sum of money in said subscription agreement set opposite to their respective names; that in consideration of the premises and of the subscription by said subscribers, defendant promised to [here state the nature of the promise and consideration for said subscription]. That the following is a copy of said subscription agreement, namely: [Here insert copy, or annex and refer to the same as an exhibit.] 4. That upon the consideration of said subscription agreement plaintiff constructed and completed said [or partially constructed, etc.], and expended thereon large sums of money, and incurred large liabilities; that the plaintiff duly performed all of the conditions of said subscription agreement on its part. to 5. That after the construction and completion of said. wit, [or allege the happening of the event or contingency upon which the subscription was to have been paid,] on the day of 19, plaintiff demanded from the defendant the said sum of $ the amount of his said subscription, but the defendant has not paid the same, nor any part thereof, and the whole thereof is due and unpaid from the defendant to the plaintiff. Wherefore, plaintiff prays judgment against defendant for the and interest thereon from the sum of $ and plaintiff's costs of suit. [Verification.] day of A. B., Attorney for plaintiff. FORM No. 835-On subscription agreement for the building of a church. [Title of court and cause.] The plaintiff complains of the defendant, and alleges: 1. [Allegation of incorporation.] 2. That on the a building at day of for the purposes of public worship. in 3. That the defendant and others requested the plaintiff to complete the same, and for the purpose of enabling the plaintiff to do so, subscribed and agreed to pay to the plaintiff the sum of $ consideration of the premises and of a like subscription and agreement of others, by executing and delivering the instrument, of which the following is a copy: [Set out copy, omitting other names.] 4,5. [As in preceding form.] [Concluding part.] $359. ANSWERS. FORM No. 836-Defense of denial of execution of subscription agreement. [Title of court and cause.] [After introductory part:] Defendant denies that he at the time stated in the complaint herein, or at any time, or at all, subscribed to or executed the alleged subscription agreement set forth in said complaint. [Etc.] FORM No. 837-Defense of fraud in obtaining agreement. [Title of court and cause.] [After introductory part:] Defendant admits the execution of said agreement, but alleges that the same was executed through false and fraudulent representations made by the plaintiff to the defendant in respect to the object of said agreement, and the purposes for which said proposed fund therein provided for was to be expended, and that said false and fraudulent representations consisted in statements as follows: [Here state in particular the false and fraudulent representations made]; that defendant believing said representations to be true, signed said agreement; that there was no other consideration for the signing thereof. [Etc.] FORM No. 838-Defense of non-performance of conditions upon which the subscription was given.1 [Title of court and cause.] [After introductory part:] Defendant denies that the amount of his subscription in said agreement alleged is due or payable, and in this behalf avers that said subscription was given upon the express understanding and agreement, and upon the condition, that a fund of $ [or state such other condition as may have been the basis of said agreement] should first be 1 Where an action is brought to recover from members of a club organized for social purposes their respective amounts subscribed to a building fund, it is necessary to show by the answer in support of the defense "that no demand would be made for the payment of this obligation, or any part thereof, until it can be prudently discharged in the discretion of the board of directors, from the surplus revenue of the club," and that, as a matter of fact, no surplus revenue for said or for any purpose had ever existed: Rollins v. Denver Club, 43 Colo. 345, 96 Pac. 188, 18 L. R. A. (N. S.) 733. |