34 Fla. 244 | Fla. | 1894
The city of Orlando, by F. S. Chapman, as its mayor, sued Charles T. Gooding, as principal, James J. Patrick, Nathaniel C. Motley and Mary Sweetapple, as administratrix of the estate of Henry Sweetapple deceased, as sureties, in the Circuit Court of Orange county, for an alleged defalcation of $843.50 by Gooding, upon a bond givien by Gooding as principal, to E. J. Reel, as mayor of the city of Orlando and his suemessors in office, to secure the faithful performance by Gooding of his duties as clerk and treasurer of said •city,-and the faithful application of all funds of said city that might come to his hands as such clerk and treasurer. The declaration contains but one count, and seeks to recover upon the following bond attached .thereto as the cause of action:
Know all men by these presents, that we, Charles T. Gooding, as principal, and J..J. Patrick and EL Sweet-apple and N. C. Motley, as sureties, are held and' firmly bound unto E. J. Keel, mayor of the city of Orlando, and his successors in office, in the sum of" three thousand dollars, as follows; The said Charles-T. Gooding, as principal, in the sum of three thousand dollars, the said J. J. Patrick, as surety, in the sum of' one thousand dollars, the said IT. Sweetapple, as surety, in the sum of one thousand dollars, and the said N. C. Motley, as surety, in the sum of one thous- and dollars, for the payment whereof well and truly to be made we hereby bind ourselves — “jointly and severally” — oiir heirs, executors and administrators firmly by these presents. Signed and sealed the 10th day of November, A. D. 1886. The condition of the above obligation is such that whereas the above bounden Charles T. Gooding has been elected as clerk and ex officio treasurer of the city of Orlando, and is about to enter upon the duties of said office, now if the said Charles T. Gooding shall well and truly perform all the duties devolving upon him as such clerk and treasurer of the city of Orlando, and shall faithfully account for all moneys which shall pass into his hands by reason of said office as required by ordinances of the said city of Orlando, or by resolution of the city council, and shall deliver to his successor in office all books, moneys and other property which may belong to said city of Orlando, and which may be in his hands at the expiration of his term of office, then this obligation to be void, else to remain nr, full force and effect.
J. J. Patrick, (Seal)
H. Sweetapple, (Seal)
N. C. Motley, (Seal)
Signed and sealed in presence of—
A. W. Acree, M. Silver,
As to J. J. Patrick.
S. P. Gooding, M. Silver,
As to H. Sweetapple.
E. M. Siiepard, M. Silver,
As to N. C. Motley.
The declaration sought to recover upon the bond in the form in which it is presented above, without any allegation or explanation as to changes, alterations or additions thereto that were made after its execution.
The defendants Patrick* and Motley plead to this declaration as follows: 1st. Non estfactum; 2nd. That after the execution and delivery of said bond by them as sureties, and before the same was accepted by the plaintiff, said bond was materially altered without their knowledge, consent or privity by interlining and inserting the words, “jointly and severally,” in the covenant thereof as now set out in the bond which is attached to the declaration herein; and that said alteration was made by the defendant Gooding, or by his procurement or direction, with the knowledge and by the authority, consent or direction of the plaintiff; 3rd. That the plaintiff, by its ordinance duly adopted and approved, without the privity or consent of these defendants, extended the term of office of the principal in said bond, the defendant Charles T. Gooding, as its clerk and treasurer, and provided that he should hold his said office until December, 1887, instead of one year from J uly 31st, 1886, the term for which he
The defendant Mary Sweetapple, as administratrix of Henry Sweetapple, deceased, pleád: 1st. That the bond sued upon was not the deed of her intestate; 2nd. The same alteration in the bond plead by the other two sureties above; 3rd. The extension by ordinance of the term of office of Gooding, as .pleaded by the other two sureties.
These pleas were demurred to b3r the plaintiff upon various grounds; the demurrer was overruled, and such .ruling is assigned as error, but this assignment is not urged or insisted upon here, and we treat it as abandoned.
The principal defendant, Gooding, pleaded a set-off, of $601.50 alleged to be due him from the jfiaintiff city upon an account for work, labor and services performed by him for the plaintiff city as clerk, and for fees to which he was entitled. This plea was demurred to by the plaintiff, and the demurrer was overruled, and such ruling is also assigned as error, but is not
The plaintiff offered in. evidence the original of the bond sued upon, that showed upon its face that the words, “jointly and severally,” had been interlined therein. Its introduction was objected to by the defendants upon the ground that it showed upon its face that it had been interlined, and that it became, therefore, the duty of the plaintiff to prove that such interlineation was done, either before its execution or, if done afterwards, that it was by and with the knowledge, sanction and consent of the defendants. The court sustained the objection, to which plaintiff excepted. The plaintiff then introduced an expert in handwritings, who, after examining the bond, testified that the interlined words, “jointly and severally,” therein were in the same handwriting and apparently •written with the same ink as were the names of the parties written in the body of the bond, and of the several amounts that the sureties bond themselves for, and of the date of the instrument. With this evidence the plaintiff again offered the bond in evidence, but it was again objected to on the ground that the said interlineation therein had not been sufficiently explained. The court again ruled it out, to which the plaintiff excepted. The plaintiff then introduced the defendant brooding as a witness, who testified that the bond offered in evidence was signed by himself as principal, and by the said sureties, without having the interlined words, “jointly and severally,” therein. That after being so signed, it was left with him by- the .sureties, whereupon he took it to the city attorney, Mr. J. D. B'eggs, soon after it was signed. That Mr.
The refusal of the court to admit the bond in evidence when it was first offered by the plaintiff, upon the ground that it was the plaintiff’s duty first to explain the interlineation apparent on the face thereof, raises the question: Upon whom falls the burden of proof, in the first instance, to account for interlineations or other obvious alteratons in written instruments offered in evidence? This question has received diverse answers by different courts, and four different rules
We pass now to the third and last objection sustained by the court to the admission of the bond in evidence, to the effect that the evidence introduced by the plaintiff in explanation of the interlineation complained of established a legal vitiation of the bond, and showed that it was not entitled to admission in evidence for any purpose. The court was in error here. The evidence, already quoted, of Grooding, Beggs and Silver, shows that the plaintiff, the city of Orlando, for whose benefit the bond was made, had no instrumentality
For the reasons herein announced, but not for the reasons upon which the rulings of the court below were based, the rulings appealed from are affirmed.