94 Wis. 562 | Wis. | 1896
The appellants insist that the second bond, which bears the names of HurTbut and Johnson as sureties, was never delivered so as to become a binding obligation upon them. Their contention is that, having left the bond with Deane upon the understanding that other sureties were to sign before delivery, there could be no delivery as against them until such condition was complied with, notwithstanding the fact that the county judge knew nothing of the condition when he received and approved the bond, and even though there was nothing on the face of the bond indicating that other sureties were expected to sign.
The manifest consequences of such a principle, when applied to the vast number of official bonds which are con
In the case of Dair v. U. S. 16 Wall. 1, which was an action upon an official bond, the exact contention now before us was made; but it was entirely repudiated. It was there held' that sureties who had signed a distiller’s bond, and left it with their principal to be delivered only upon his obtaining certain other sureties, were estopped to deny the due delivery of the bond where it had been delivered by the principal to the officers of the government, who did not know of the condition; there being nothing on the face of the bond to indicate that other sureties were expected to sign. In the opinioif in that case thd following very pertinent observation is made: “It is easy to see that, if obligors are at liberty, when litigation arises and loss is likely to fall upon them, to set up a condition unknown to the person whose duty it was to take the bond, and which is unjust in its result, the difficulties of procuring satisfactory indemnity from those who are required by law to give it will be greatly increased. Especially is that so since parties to the action are permitted to testify.” This case was followed in Russell v. Freer, 56 N. Y. 67, when the previous
In the case of State v. Peck the following apt remarks are made which apply exactly to the case before us: “ It is believed that the doctrine contended for in the defense here would be mischievous beyond endurance. Take, for example, that very numerous class of securities, — probate bonds,- — ■ varying in amount from less than one hundred dollars to many thousands, seldom executed in the presence of both parties, rarely becoming the subjects of litigation till after such a lapse of time that the details of the transaction have faded and become obscure in the memory of the actors. What can be done to insure their validity if the obligors are at liberty, under the stimulus of impending loss, to do away with their declaration of absolute delivery (which they have caused to be subscribed in their own presence and allowed to be presented to the probate judge) by some ill-remembered conversation about other proposed sureties, whom they now claim as indispensable parties, no hint of which conversation has ever reached the officer who receives and approves the bond ? The simplest maxims of good faith forbid the effect which the defendants propose to give to their conversation among themselves.” It would be difficult to state the considerations bearing against the doctrine urged by the appellants more strongly, than is done in the above quotation, and we shall not make the attempt. The cases cited all go upon the principle of estoppel, or upon that other principle, which
While the principles above stated have been adopted by the great majority of the courts of last resort which have had occasion to consider the question, it is vigorously and ably contended that a different rule has been laid down in several cases which have come before this court, and hence a consideration of those cases becomes necessary.
There is a class of cases in this court holding substantially that, where it appears clearly and satisfactorily that one signed a negotiable note relying upon fraudulent representations that the paper was of a different character, he is not bound thereby, even in the hands of a bona fide holder for value, if he be notguihy of negligence in failing to ascertain-its true character. Walker v. Ebert, 29 Wis. 194; Kellogg v. Steiner, 29 Wis. 626. This principle, plainly, is not in any sense applicable to the present case.
Again, there is another class of cases holding or intimat
It appears, by certain motion papers filed in this court just prior to the argument of the case, that Walter J. Bug-bee, one of the heirs, purchased this judgment of the administrator de bonis non, and obtained an assignment thereof, and that thereupon the estate was finally settled in the ■county court, and that the attorneys appearing in this court represent Walter J. Bugbee, and not the county judge. Upon this ground objection was made to their appearance here,#and motion was made to exclude them from the case. This only shows that there has been a transfer of interest pending the litigation, and does not make absolutely necessary even a substitution of parties. R. S. sec. 2801. There seems to be no valid or serious objection to allowing the affirmance of the judgment in the name of the county judge.
It was suggested, also, that in the course of the settlement of the estate in the county court (after this judgment was entered), the obligors on the first bond, Lavinia, Emma, and Ida, had paid to Walter their share of the liability upon this judgment, viz. seven eighteenths thereof, and that this judgment should not be affirmed as to the whole amount of the defalcation, but, at most, only to the amount of eleven eighteenths thereof. This is a matter occurring after judgment, which we cannot consider. If the judgment has been in fact partially paid, the circuit court will have ample power to determine the fact, and see that the amount paid is duly credited. We find no errors in the record.
By the Court.— Judgment affirmed.