55 Minn. 187 | Minn. | 1893
The question of law presented in this appeal is whether the sureties named in, and who signed, an instrument designed to be the bond required, under 1878 G-. S. ch. 26, § 2, of a person about to be appointed a notary public, are bound by its conditions when the principal has failed to sign the same. The instrument purported to be the joint and several obligation of “A. H. Hornsby as principal, and U. L. Lamprey and Chas. W. Clark as sureties.” It was conditioned that “the above-bounden A. H. Hornsby” should faithfully discharge the duties of a notary. Through inadvertence in the office of the chief executive, the failure on the part of the principal to sign the purported obligation was overlooked. It was approved, and a commission issued.
The statute above referred to clearly contemplates the execution of a bond, with the appointee as the principal, and with sureties; and this is more apparent when we read, in connection, the first three sections of 1878 G. S. ch. 78, which authorize and provide for the bringing of actions upon official bonds. So the bond in question was not executed in compliance with the law, but was unfinished and incomplete. Speaking of a somewhat similar instrument, this court said, in State v. Austin, 35 Minn. 51, (26 N. W. Rep. 906,) that: “Upon its face, the bond appears to be incomplete. It was not the
This brings us to a consideration of the only remaining point. Jt was remarked in the Austin Case that “it may be that persons executing such an instrument, which, upon its face, appears to be incomplete, may, by their own conduct, subject themselves to liability thereon, or become estopped from questioning the completeness of the instrument.”
Of course, no one can doubt that if sureties see fit to bind themselves absolutely, in any manner, without the signature of the principal, although named as such in the bond, they may do so, precisely as sureties may bind themselves although one of their number named as such in the obligation has refused to sign it, as was the case in Van Norman v. Barbeau, 54 Minn. 388, (55 N. W. Rep. 1112.) So we now have to inquire whether, by their conduct, these sureties have in any way concluded themselves from denying a liability upon the instrument which they signed. From the evidence, it appears that a printed note of instructions was appended to the blank bond. By this, the applicant for appointment was informed that the bond must be signed by himself as principal, with at least two sureties. Horns-by was a real-estate dealer, and requested Lamprey and Clark to become sureties upon the bond in question, informing each that the other had agreed so to do. At his request, Clark went to Lamprey’s office, where the blank was. Clark there wrote, in the body
It is the admitted fact that both of these sureties had more or less knowledge, later on, that Hornsby was acting as a notary public, but, as before stated, they were not informed of his delivery of the bond without having signed it as principal. Had they been so informed, and then allowed him to exercise the duties of a notary, it is possible that they might not have escaped the consequences of his misconduct.
We think it manifest, from the whole case, that the sureties did not intend to be bound on the instrument unless it was also executed by the principal named therein, nor was it the intention of the chief executive of the state to accept it without such execution, and, further, that the sureties have not precluded nor estopped themselves from taking advantage of the omission.
Order affirmed.