94 F. 921 | 9th Cir. | 1899
after stating the facts as above, delivered the opinion .of the court.
- The controlling question presented in this case is whether the undertaking on appeal was executed without the state of California. No instrument is executed until it is delivered. To constitute a delivery, the obligor must do some act which places the instrument beyond his control and beyond his power of revocation. Duer v. James, 42 Md. 492; Fisher v. Hall, 41 N. Y. 416; Younge v. Guilbeau, 3 Wall. 636. The delivery need not always be made to the obligee personally. It may be made to a third person in his behalf. Hatch v. Bates, 54 Me. 136; Cooper v. Jackson, 4 Wis. 538; Sneathen v. Sneathen, 104 Mo. 201, 16 S. W. 497. A bond on appeal is not delivered to the opposite party to the suit. It is delivered to the clerk of the court, who files it and holds it on behalf of the obligee for whose benefit it is given. Section 1307, Civ. Code N. Y., provides that an undertaking "must be filed with the clerk with whom the judgment or order appealed from is entered.” There can be no doubt that, as a general rule, the filing of an undertaking on appeal is its delivery. The proposition that the place of the delivery of such an instrument will, in the absence of an agreement to the contrary, be deemed to be the place of its execution, irrespective of the place where it was signed, and that a contract is made in that state in which it first takes effect as a binding obligation, is fully sustained by the authorities. In Bell v. Packard, 69 Me. 105, it was held that a promissory note written in Maine, but signed in Massachusetts, by citizens living there, and then returned by mail to the payee, living in Maine, is a note made in Maine, and to be construed by the laws thereof. The court said: “For, although it was signed in Cambridge, it was-delivered to the payee in Skowhegan, and it was not a completed contract until delivered.” In Lawrence v. Bassett, 5 Allen, 140, the defendant had put his name on the back of a note in another state while it was in the hands of the original maker, and before it was delivered to the payee. It was subsequently passed to the payee in Massachusetts for a valuable consideration. The court held that it then for the first time became a valid promise to pay the money, and said: “Until such delivery, it was not a binding and operative contract, upon which the defendant could have been held as a party to the note. It was therefore the delivery to the
But it is urged that the underlaking in the present case must be held io have been executed in the state of California, for the ‘reason that there the final assent thereto was given. It is said that the plaintiff in the action had agreed to accept the defendants in error as sureties; that thereafter no further act was required than that they should attach their signatures to the undertaking; and that when they signed the same, and parted with us possession, the transaction was complete. We are unable to assent to Hi is view of the facts or of the law applicable to them. ITp to the date of the filing of the undertaking, there was no binding agreement of any kind between the parties. There had been a request on the part of the defendants in the action that the plaintiff accept sureties residing in California, and the request had been assented to. But there was no stipulation in writing, and there was nothing to hold either party to the agreement. It was nudum pactum. The first and only agreement, that had binding force was the stipulation that was entered into when the bond was filed in the state of New York. The plaintiff in the action had not bound itself to accept as an undertaking on appeal any in-si rument that might come from California bearing the signatures of the sureties named. The final act was not the signing of such an instrument by the sureties, but its acceptance by the opposite party and its delivery. This is evidenced by the stipulation which accompanied it when it was filed. Up to that time the sureties on the bond had the right to recall the instrument. They could have revoked it at any time before it left the possession of the de-finid ants in the action. There was no consideration for their liability as sureties before the bond was actually used on the appeal. The stipulation by which it was accepted was made between the parties to an action pending in the state of New York, and with reference to an appeal to a court of that state, and with reference to an undertaking which had been signed, verified, and ac
The case of Alcalda v. Morales, 3 Nev. 132, cited by the plaintiff in error, is not authority for its contention. In that case one oí two partners doing business in Nevada went to Sacramento, Cal., to borrow money for the firm. He negotiated a loan, signed a promissory note in Sacramento, and obtained the money upon it. The note was then sent to the other partner, who’ executed it in Nevada, and returned it to the plaintiff, in Sacramento. It was held that the note was executed in Nevada. It was so held for the reason that the form of the paper had been agreed upon in California, and there accepted, and there the money had been obtained thereon, and nothing remained to be done except to obtain the signature of the other partner, and that when his signature was appended, and the note left his possession on its way to the plain-tilt, the transaction was closed. The vital points which distinguish that case from the case at bar have already been suggested. When the defendants in error signed the bond in California, the transaction was not closed. Their signature was but the first step. The undertaking had not been accepted. No stipulation had been made, as provided by statute, assenting to the undertaking or waiving the nonresidence of the sureties. There is nothing in the complaint to show that the plaintiff in the action had seen the instrument or knew its terms, or, indeed, to show that it was not drawn in California at the time when it was signed there. The plaintiff was under no obligation to accept the bond, nor to accept the defendants in error as sureties. It had parted with none of its rights. Execution upon its judgment had not been stayed. Payment of the judgment could have been enforced by process at any time before the undertaking and the stipulation were filed. How, then, can it be said that when the sureties signed the undertaking, and parted with its possession, the last act hdd been done and the transaction was closed?
On the argument of the cause in this court, the point is made that subdivision 1 of section 33!) of the California Code of Civil Procedure is opposed to the provisions of the constitution of the United States, and is therefore void. We do not need to enter into a discussion of this proposition. The point was not mach; in > he assignments of error, and is not properly before the court. If it were, we should be compelled to dismiss the appeal. Hamilton v. Brown, 3 C. C. A. 639, 53 Fed. 753; Hastings v. Ames, 15 C. C. A. 628, 68 Fed. 726; Pauley Jail Bldg. & Mfg. Co. v. Crawford Co., 28 C. C. A. 579, 84 Fed. 942; Wrightman v. Boone Co., 31 C. C. A. 570. 88 Fed. 135.
The judgment will be affirmed.