59 Pa. Super. 1 | Pa. Super. Ct. | 1915
Opinion by
The question raised by this appeal is whether the surety company is liable upon the bond which it gave, although the principal did not execute the bond. The clause of the bond which we are called upon to construe reads as follows, “Know all men by these presents that we, David J. Holleran, of Philadelphia, (hereinafter called the principal), as principal and Massachusetts Bonding and Insurance Company, a Corporation established under the laws of the Commonwealth of Massachusetts, and having its principal office in Boston in said Commonwealth, (hereinafter called the Surety), as Surety, are held and firmly bound unto Walter T. Bradley of the City of Philadelphia, Pennsylvania, (hereinafter called the obligee), in the sum of Five Thousand Dollars (15,000) for the payment whereof said principal binds himself, his heirs, administrators and executors, and said Surety binds itself, firmly by these presents.”
The appellant, however, contends further that as the principal did not sign the bond it is invalid. There is authority for holding to the contrary and that the surety is liable although as to the principal the bond is not signed. In 32 Cyc., page 42, we find the following, “In some jurisdictions a distinction is made between joint and joint and several bonds. Thus it is held that the failure of the principal to execute a joint and several bond does not invalidate the same as to the surety, unless there was an express agreement that the bond was not to be valid until so executed.”
In Loew’s Administrator v. Stocker, 68 Pa. 226, we find that when a joint and.several bond of indemnity for selling under an execution was given to the sheriff and was not executed by the principal, a recovery could be had against one of a number of sureties who signed the bond. .Justice Sharswood uses the following language in that case, “Had the bond not been executed at all in the name of Jonathan Brock, although he was mentioned as one of the obligors in the body of the in
We think the decisions above quoted cover every point raised by the appellant and are controlling.
The judgment is therefore affirmed.