Barry v. Larabie, 7 Mont. 179

Barry v. Larabie

7 Mont. 179 | Mont. | 1887

The opinion states the facts.

McLeary, J.

This is an appeal from a judgment and order overruling a motion for a new trial. The cause was tried before the court below, sitting without a jury, upon the complaint, answer, and replication and evidence introduced, and judgment was rendered in favor of the defendants for their costs. The evidence adduced on the trial shows that on the twentieth day of June, 1884, the probate judge of Deer Lodge County made an *182order committing one Thomas Gregg to the county jail, to answer to an indictment to be preferred against him in the district court, for obtaining money under false pretenses from Thomas Horne, and fixed his bail at one thousand dollars. On the twenty-fifth day of June, the plaintiff and defendants entered into a written contract, by the terms of which the defendants, in consideration of plaintiff’s depositing in bank one thousand dollars, to indemnify defendants, were to become sureties on the bond for Gregg in said sum, for his appearance in the district court to answer to an indictment to be preferred against him for obtaining money under false pretenses; and that, in case said Gregg should fail to appear, as required by the terms of such bond, and his default should be declared and entered thereon, then, upon a certificate from the district clerk to that effect, the defendants were to draw the money from the bank, and the said one thousand dollars was to be repaid to the plaintiff, in the event that the defendants should be exonerated from the said bond. Plaintiff deposited the money, and defendants signed a bond for the appearance of Gregg to answer to the indictment for obtaining money under false pretenses, or any offense for which he may be indicted, and Gregg was released. Thereafter Gregg was indicted for grand larceny from Holland. Gregg failed to appear, and his bond was forfeited. On certificate of the clerk, defendants drew the money from the bank, and paid it over to the county commissioners. And such was the substance of the findings of fact made by the court, whereon judgment was rendered in favor of defendants for costs.

Two alleged errors are relied on: 1. The overruling of the plaintiff’s demurrer to the defendant’s answer; and 2. That the evidence was not sufficient to justify the judgment of the court.

These will be considered in the order indicated.

*1831. The first part of the answer is a specific denial of the complaint; and it is sufficient. The second part of the answer to which the demurrer is interposed sets up new matter to this effect: That the money for which suit is brought is certain money which the plaintiff had deposited with a bank to indemnify the defendants from becoming sureties for Gregg, who had been bound over by the probate court to answer an indictment for obtaining money under false pretenses, and that, by reason thereof, the defendants had become sureties on Gregg’s bond, binding him to appear and answer said charge, and any indictment which might be, preferred against him, and that said bond had been forfeited, etc. It seems from this portion of the answer that the defendants entered into a more onerous bond than the one against which the plaintiff had made the deposit to indemnify them. This they had a right to do, but not thereby to charge the plaintiff. He agreed to indemnify them against becoming sureties only on a bond binding Gregg to appear and answer for the crime of obtaining money under false pretenses; but thereupon the defendants became sureties on a bond which bound Gregg, not only to answer to this crime, but “ to answer to any indictment which might be, by the grand jury of said county, preferred against him.” Against such a bond, as appears from the answer, they had not been indemnified by the plaintiff. The demurrer should have been sustained. But even if it had been sustained, the case would have had to proceed to trial on the specific denial; and this brings us to the next question.

2. The evidence has already been fully detailed, and need not be repeated. It will be observed that the accused, Gregg, was bound over by the probate court to answer for the crime of obtaining money under false pretenses from Horne; and that it was in signing a bond, in compliance with this order, that the plaintiff made *184the deposit to indemnify the defendants. But instead of signing such a bond, they signed one much more onerous, requiring the defendant to appear and answer, not only the offense for which he was bound over, but any offense for which he might be indicted. He was not indicted for obtaining money under false pretenses from Horne, which would have been a misdemeanor, but for grand larceny from Holland, which is a felony. He failed to appear, and forfeiture followed, and the money was drawn by defendants.

This bond, which the defendants signed as sureties, was a nullity. The sheriff had no right to require it, and the defendant was not bound to give it. It is not supported by the order of the probate court. It should not have been forfeited, because Gregg was not indicted for the crime mentioned in the order of the probate court.

But even if it had been a valid bond, it was not the bond the payment of which the plaintiff deposited his money to secure. If the defendants became sureties on any other bond than the one mentioned in their contract, they did so on their own responsibility, and not at the risk of the plaintiff. They had no right to expect the plaintiff to indemnify them against loss by any other bond than the one mentioned in the contract, much less a more onerous bond. The bond against which the plaintiff indemnified them was a bond to answer foi a misdemeanor. The bond they signed bound Gregg to answer, not only to a misdemeanor, but to a felony, even a capital felony. The plaintiff could not be expected to go beyond his contract, and guarantee the appearance of Gregg to do this. He might have been willing to do so, but he did not do so in the contract before U3. In these particulars the judgment is not supported by the evidence, nor by the findings of the court, which fairly state the evidence.

*185Sucli a bond ought not to have been demanded; but if demanded, the defendants should have looked to their indemnifying contract, and refused to sign it; but having signed it, they should have looked to the plaintiff to secure them. The clerk’s certificate was properly issued, because it followed the judgment of the court; but the defendants had no right, under all the circumstances, to draw the money from the hank; and having drawn it, they are liable to the plaintiff therefor.

The judgment of the district court is reversed, and judgment is here, rendered on the findings of the court below for the plaintiff, for the full amount claimed in his complaint, and all the costs of this court and the court below.

Judgment reversed.

McConnell, C. J., and Bach, J., concur.