31 Neb. 144 | Neb. | 1891
This suit was brought in the court below against Wra. R. Toole, as a former town treasurer of Dorchester township, Saline county, and Y. W. Hagler, Andrew Moffitt, W. J. Jennings, N. C. Rierson, Alfred Barslow, and Paul Bankson, as sureties on his official bond, to recover the sum of $2,064.48, with interest thereon. Toole failing to answer, his default was entered.
The defendant Moffitt filed an answer admitting that he signed the bond, and alleging that before the same was presented for approval, his name, at his request, was erased therefrom.
Hagler m his answer alleges that he refused to sign the
The defendants Jennings, Bankson, Barslow, and Rierson join in an answer, in which they set up that Moffitt and Hagler had signed the bond when they signed the same, and allege that Moffitt’s name was afterwards erased without their knowledge and consent, but before the bond was approved.
A jury was waived and the case was tried to the court, who found the issues against all of the defendants, and rendered a judgment in favor of the plaintiff below for $2,530.50. All of the answering defendants joined in a motion for a new trial, which was overruled, and the sureties bring the case here on error.
The record discloses that the defendants Hagler and Moffitt signed the bonds* by mutual agreement and at about the same instant of time, Hagler signing first, followed by Moffitt. It was shortly afterwards presented to and was signed by the other sureties. After all the defendants signed the bond, and before it was presented for approval, Moffitt’s name was, at his request, erased from the instrument by drawing a pencil line through the name, unbeknown to the other sureties. In this condition the principal in the bond filed it, and it was afterwards approved. Toole was robbed of the money which he had collected as taxes. No question is made as to the amount of his defalcation. It further appears from the testimony that soon after Toole was robbed, for the purpose of indemnifying the sureties against loss, he turned over to them his real and personal property of the value of several hundred'd'ól'lárs. The real estáte’’.consisted-of two lots
Until the bond in question was delivered to the proper officer and approved, it was not binding upon any of the obligors. Prior to its approval, any signer could lawfully have his name erased from the instrument, and such' withdrawal from the bond releases the person withdrawing from all liability thereon.
It cannot be doubted that the erasure of Moffitt’s name in the body of the bond, and as signed to it as one of the sureties, prior to its delivery and approval, without the knowledge and consent of his co-sureties and after all had signed the instrument, was a material alteration. It made the bond quite different from that signed by the defendants. The releasing of Moffitt increased the liability of all the other sureties, and diminished their means of protection by way of contribution from Moffitt. But it is claimed by counsel for the defendant in error that when the sureties left the bond with Toole to deliver to the county clerk, they constituted him their agent, and as the bond is in the same condition as when delivered, they cannot set up as a defense that Toole erased Moffitt’s name without their consent. While it is true the principal obligor was the agent of the sureties in delivering the bond, he was not authorized by them to change the obligation to their prejudice without their consent, or to deliver it in any other condition than it stood when they signed it. He could no more bind the sureties, by erasing one of the obligors, than he could bind them by increasing the amount of the penalty without their knowledge. The alteration of the bond in suit was such as to attract the attention of the reader of the instrument. It was the duty of the officer who ap
It was said by this court in Cutler v. Roberts, 7 Neb., 5, that “if there is anything on the face of the bond, or in the attending circumstances, to apprise the obligee that the bond has been delivered by the sureties to the obligor to be delivered to the obligee upon certain conditions, which have not been complied with, the sureties may plead the failure to comply with the conditions as a defense in an action on the bond.”
State v. Craig et al., 58 Iowa, 238, was an action upon a bond executed to the state of Iowa by the defendant Craig as warden of the penitentiary. After the signatures of seven of the sureties were obtained, one Geo. H. Smith signed the bond as surety. The signatures of several others were obtained after that. Before the names of the sure-’ ties were inserted in the body of the bond, and before it was approved or offered for approval, the name of Smith was erased, partly at his request and partly because he refused to justify in an amount sufficiently large to satisfy Craig. None of the sureties consented to the erasure. They defended on the ground that Smith’s name was erased. The court held that the alteration was a material one, and that the sureties who signed prior to Smith, as well as those who signed afterwards, were released.
In State v. Churchill et al., 3 S. W. Rep., 352, the principal defendant, Churchill, was elected treasurer of the state of Arkansas and executed his official bond, with the other defendants as his sureties. The name of Radcliff, signed to the bond as one of the sureties, was erased by Churchill after all the defendants had signed it and before it was delivered or approved. None of the sureties had any knowledge of the erasure, except that A. H. Garland, one of their number, then governor of the state, observed the erasure when the bond was presented to him for approval. Upon these facts,all the sureties, including. Garland, were held not liable.
It is urged by the defendant in error that the sureties having been indemnified by the principal obligor after the defalcation occurred, and with knowledge that Moffitt’s name had been erased, they adopted and ratified the bond in the condition in which it was approved, and are liable thereon. Had the sureties consented to the alteration before the approval of the bond, they would have been liable. So, by receiving security from Toole after the defalcation occurred, with knowledge of the change in the bond, they adopted and ratified it as theirs, and are liable according to the conditions therein written.
It does not appear that all the sureties had knowledge of the taking of the security, but as all joined in the motion for a new trial, as it could not be allowed as to all, it was rightly overruled as to all. (Long v. Clapp, 15 Neb., 417; Dorsey v. McGee, 30 Id., 657.)
The judgment of the district court is
Affirmed.
