35 Miss. 518 | Miss. | 1858
delivered the opinion of the court.
This was a suit on a note under seal for seven hundred and fifty dollars, made by William McGuire, and Ira J. Goff the plaintiff in error, payable to the treasurer of the school-fund of Bolivar county.
The plaintiff in error was a surety on the note; and the de-fence principally relied on, was presented under a special plea, the material allegations of which are as follow: That the instrument sued on, was not the defendant’s act and deed, because he signed it on the express condition that Peter Whitworth should sign it as a co-security. That the instrument was to be presented to Whit-worth for his signature; and, if Whitworth failed, or refused to sign the same, defendant’s name was to be taken off of said note, and he was not to be bound thereby. That the instrument was presented to said Whitworth, by the agent of the plaintiff, in pursuance of the condition, and that Whitworth refused to sign the same, whereby the defendant was released.
The note was given for money loaned out of the school-fund, by Bankston, the treasurer, to William McGuire, the principal in the note. And on the trial, it was proved by the only witness examined, that on the same day the note is dated, witness carried the school-fund from Judge McGuire, and delivered it to Bankston; that in the evening of that day, Bankston handed to witness the note, which, with the exception of the signature of the plaintiff in error, is in the handwriting of William McGuire, and requested him to get the signatures of Whitworth and the plaintiff in error. That he called on plaintiff in error, who remarked that Whitworth was to sign with him as co-security; and, as it was not signed by Whit-worth, he asked witness if it would be binding on him if he signed it, and Whitworth would not. Witness replied, he did not believe it would. Plaintiff in error then signed, and handed the note to witness, who afterwards called on Whitworth for his signature, but
Upon this evidence, the cause was submitted to the jury, under instructions, and they returned a verdict for the plaintiff. Whereupon, a motion was entered for a new trial, which was overruled, and a bill of exceptions filed.
Two errors are relied on for a reversal of the judgment.
First, it is insisted that there was error in the refusal of the court, to charge the jury as requested by the plaintiff in error, and in granting the instructions asked for the defendant in error.
Several instructions were requested in behalf of the former, all of which were refused; but it will only be necessary to notice the first; and the third charge given at- the instance of the latter; as these two instructions fully present the question of law to be considered in reference to this part of the proceeding.
The first instruction, requested in behalf of the plaintiff in error, and refused as above stated, is in the following words: “If the jury believe, from the evidence, that the defendant signed the note sued on, as the security of William McGuire (the principal) to be binding on its being signed by Peter Whitworth, with the consent and agreement of the plaintiff (Bankston), or his agent, and it was not signed by Whitworth, they must find for the defendant,”
And the third instruction given for the defendant in error, is in these words: “ That if the bond sued on, was signed by the defendant, as surety of McGuire, on condition that it was to be signed by Whitworth as surety also, and was delivered by the defendant to the plaintiff Bankston, or to his agent, Hudson, the defendant is liable on the bond, although Whitworth may have refused to sign it. But if the bond was signed on the above condition, and delivered to Hudson, not as agent of Bankston, but to be held by him, and not to be delivered to Bankston until Whitworth had signed it as co-security with defendant, then defendant would not be liable on it until signed by Whitworth; and a delivery of the bond by Hudson to Bankston before it was signed by Whitworth, would not be sufficient to charge the defendant.” ^
These instructions, taken in connection, in effect, recognize the principle, and lay it down as the rule of law applicable to the case
It is manifest, that the court, in refusing the first, and in giving the second of these instructions, acted upon the supposition that the issue presented by the pleadings was, whether the bond was delivered by the defendant as an escrow or not. - This was a clear misapprehension of the state of the question. The plea was not good as a plea of an escrow; nor was it tendered as such. At best, it amounts only to a special plea of non est factum, depending for its efficacy upon the alleged facts, which, if the obligor attempted to enforce payment of the bond, would be an act of fraud on his part.
The question here, is not whether the instructions laid down a principle which is correct as an abstract rule of law, but whether they were not inapplicable to the proofs admitted under the issue between the parties, and were not calculated to mislead the jury.
That such was the case, no doubt can be entertained. The question before the jury was not whether the bond was delivered to a stranger, to be retained in his possession until it was executed by Whitworth, as a co-surety of the defendant, and not to be delivered to the plaintiff until that was done, but whether the bond was signed by the defendant, as a surety of McGuire, under an express understanding and agreement with the plaintiff or his agent, that it was not to take effect as to him, unless it should be signed by Whitworth also, as his co-security. The instructions necessarily precluded all investigation into these facts; and limited the consideration of the jury to the simple question, whether the bond was delivered as an escrow or not.
The next error insisted on, is the refusal of the court to set aside the verdict and award a'new trial.
According to the evidence before them, the jury might have been justified in finding for the defendant. It is at least very certain, that the verdict rendered is not according to that evidence, so manifestly correct as to .exclude all doubt as to its propriety. It is,
These facts are, that the bond was signed by the defendant on the express condition that Whitworth should also sign it as a co-security ; that the bond was to be presented to Whitworth for his signature, and if he refused to sign, the defendant 'was not to be held liable on the bond; and that Whitworth, on a presentation of the bond to him for his signature, by the agent of the obligor, refused to sign it.
The condition on which the bond was to take effect, as to the defendant, was without doubt a valid one; and whether or not, the non-performance of it by the obligee, rendered the bond void from its inception, it is clear upon reason and authority, that the defendant, unless he waived the performance of the condition, could not be made liable upon it. Under the facts stated, an attempt to enforce payment from the defendant, would be a manifest violation of good faith. It would be a fraudulent attempt to enforce a void instrument against the surety of a debtor. Leaf v. Gibbs, 19 Eng. C. L. R. 475; Stone v. Compton, 35 Ib. 64; Sharp v. United States, 4 Watts, 21; King v. Smith et al. 2 Leigh, 157; Fitts v. Green, 3 Dev. 291.
It is suggested that the opinion here expressed of the validity of the defence set up in this case, is in conflict with the decision in Graves et al. v. Tucker, 10 S. & M. But there is very little analogy between the facts and questions in that case, and the case before us. There is certainly no conflict between any opinion here ex- ■ pressed, and the principles recognized in Graves v. Tucker. On the contrary, the reasoning employed and the principles recognized in that, amount to an indirect recognition of the validity of the defence here set up.
Judgment reversed, and cause remanded.