Jacobs v. Hogan

| Conn. | May 29, 1901

In support of the sufficiency of the second paragraph of his answer, the defendant Corr relies on the principle that a conditional delivery of a bond is not a delivery until the condition has been fulfilled. This principle is not involved in the decision upon the demurrer. The complaint alleges the execution of the bond. This is an allegation of its delivery. Jacobs v. Curtiss, 67 Conn. 497" court="Conn." date_filed="1896-04-15" href="https://app.midpage.ai/document/jacobs-v-curtiss-6583704?utm_source=webapp" opinion_id="6583704">67 Conn. 497,501. In failing to specifically deny the execution and delivery of the bond as alleged (General Statutes, § 874), the defendant, for the purposes of the case, admits the execution and delivery; these facts must be accepted upon trial as proved without the production of evidence. Garland v.Gaines, 73 Conn. 662" court="Conn." date_filed="1901-05-08" href="https://app.midpage.ai/document/garland-v-gaines-3320582?utm_source=webapp" opinion_id="3320582">73 Conn. 662.

As the answer neither denies the delivery nor alleges a conditional delivery, but admits that the bond (upon its face valid in every particular) was delivered to the obligee, the fact alleged in paragraph 2 — that when the defendant signed the bond there was some condition or agreement that it should not be delivered until Michael Hogan (unnamed in the bond) should add his signature as principal — is no defense to this action by the obligee, in the absence of all notice to him of such alleged agreement between the defendant and some unknown person. Greathead v. Walton,40 Conn. 226" court="Conn." date_filed="1873-06-15" href="https://app.midpage.ai/document/greathead-v-walton-6579663?utm_source=webapp" opinion_id="6579663">40 Conn. 226, 235; Jacobs v. Curtiss, 67 id. 497. The last cited case substantially governs this. The demurrer was therefore properly sustained as to paragraph 2 of the answer, because it does not appear therefrom that the plaintiff had any knowledge or notice of the alleged conditional signing.

In failing to claim that sustaining the demurrer on this ground left other issues on which he was entitled to trial before final judgment could be rendered, and in consenting that final judgment might be entered for the plaintiff, the defendant has waived the right to raise any question (assuming the matter to be doubtful) in respect to such claim. No such claim was urged in argument, and no error of this nature was assigned in the appeal.

There is no error in the judgment of the Court of Common Pleas.

In this opinion the other judges concurred.