79 Wis. 641 | Wis. | 1891
Tbe demurrers are rested solely upon, the proposition that the failure of the county treasurer to execute the bond of’ January, 1887, renders the same void. This is in effect a concession that, had he executed the same, it would have been a valid obligation. That it would have been valid as a statutory or common-law obligation, had it been executed by the treasurer, cannot be doubted. It is practically conceded by the learned counsel for the appellants that if the bond is a joint and several obligation, it is valid, although the principal named therein failed to execute it. This concession is supported by the great weight of authority, both here and in England. It seems to be quite well settled that the failure of the principal to execute a joint and several bond does not invalidate the same as to a surety, unless there was an express agreement that the bond should not be valid until so executed. No such agreement is claimed in this case. Taylor v. Coon, ante, p. 76, was an action on an obligation not executed by all the persons named therein as obligors. It was ai’gued that the instrument was incomplete for that reason, and could not be upheld against an obligor executing the bond until all such persons had executed it, unless he consented to dispense with thdir signatures. And further, that unless such consent is averred in the complaint the same is demurrable. The opinion contains an intimation that probably this is a correct view of the law. In the light of our further investigation of the subject in this case we are constrained to withdraw such intimation. There is a point of difference in the two cases, however, which should be noted. In that case the persons whose signatures were wanting from the instrument were not bound for the payment of the debts mentioned therein, while in this case the principal is liable for his default, and his signature to the bond in question would not have increased or changed his liability to the sureties therein. The con
Counsel maintain, however, that while the bond in suit is several as between the sureties, it is joint, and not several, as between the principal and each surety who executed it. Were this a correct proposition, some of the cases cited by him would be in point, for they seem to hold that a joint, and not several, bond is inoperative without the signature of the principal, and cannot be enforced against the sureties. But we think the proposition is incorrect. It .is refuted by the terms of the instrument, which declares that the parties named in it as obligors, including the principal, “ are each severally held and firmly bound unto the county of Douglas,” etc., and that they so bind themselves, their heirs, etc., “ severally and firmly by these presents,” etc. We do not perceive how the several obligation of each party named as an obligor could have been more clearly and strongly expressed. See Taylor v. Coon, supra. It must be held, therefore, that under the allegations of the complaint the bond in suit is a valid obligation against the sureties who executed it, and each of them, although the principal did not join in its execution.
The case ivas fully and ably argued by counsel, and numerous authorities cited in support of their respective positions. These citations will be preserved in the report. While there may be some conflict in the cases, it is believed that the great weight of authority, as well as the better reasons, support the decision of the circuit court.
By the Court.—The order overruling the demurrer to the complaint is affirmed.
