56 Iowa 492 | Iowa | 1881
Lead Opinion
It is provided by statute that “ when a bond * * given to any officer * * is intended for the security of * * particular individuals suit may be brought thereon -in the name of the person intended to be thus secured, *. * ” Code, §2552. This section in substance was copied from Bev. § 2787, and is literally the same as § 1893 of the Code of 1851. The bond sued on was given when § 3219 of the Eev. was in force. This last section in substance is the same as § 1876 of the Code of 1851. It will be seen the statutes in force now, when the bond was" given, and when Sheppard &
It is immaterial what constituted or was the inducing cause that moved the plaintiff to purchase and procure an assignment of the judgment. He nevertheless is the owner thereof and entitled to the rights of such. It is possible that evidence tending to show the purchase and assignment was inadmissible under the allegations of the petition, but no objections were made thereto. Had there been, no doubt if deemed necessary the plaintiff would have amended his petition.
Stamper presented this bond to the plaintiff, and before he accepted it the plaintiff in good faith, with honest intent and at the request of Stamper, for the purpose of identifying the property attached, interlined therein immediately after the name “Stamper” the following, “ consisting of six, sofa chairs, one settee, one round table, one clock, one mirror, one
The defendant insists there was another interlineation, but as to this there was a conflict in the evidence. We therefore cannot find it to be true.
When the bond was thus interlined and delivered the attached property was released. The interlineation described the property in the precise terms of the return on the attachment.
The interlineation was made without the knowledge or consent of the defendant, and his counsel insist the bond by reason thereof is void as to him.
We are of opinion the legal effect of the bond was not changed by the interlineation. No one obtained any advantage, nor was any one injured thereby. If it had not been' made the property could have been readily identified by the return on the attachment, and this was the property the obligors bound themselves to return to the sheriff. When described in the bond as was done by the interlineation its effect may have been to make additional evidence of the property attached. If so, such Was not the intent of either Stamper or the plaintiff, and if such Was the intent it does not follow the bond for this reason was rendered void. Adams et al v. Frye, 3 Met., 103.
As the interlineation was not material, and did not affect the operation of. the bond or the rights of the parties, and was not made with any wrong or fraudulent intent, but in good faith, it should not render the bond void. Such is the rule in this State, and is believed to be in accordance with the weight of modern authority. Robinson v. Phœnix Insurance Co., 25 Iowa, 430; Briscoe v. Reynolds, 51 N. C., 73.
Counsel for defendant insist because of the foregoing facts he is wholly discharged, although no evidence was introduced tending to show the value of the wagon, or that the defendant in consequence of what Sherman said made no efforts to indemnify himself from loss, or that he could then have obtained further indemnity.
The question for determination is whether the defendant was wholly discharged or only to the extent of the value of the property surrendered. In Harris v. Brooks, 21 Pick., 195, there was evidence tending to show the holder of the note informed the surety he would look to the principal, and that the surety need not give himself any further ¿rouble about the note, for he' should not be injured.
The court instructed the jury if, in consequence thereof, the surety omitted to take up the note, and secure himself out of the property of the principal, he was discharged.
The instruction was approved, the stated ground being “ that it lulls the party into security and prevents him from obtaining indemnity, and it would be a fraud on the part of the holder after making such assurances to call upon the surety.”
This case was followed by Carpenter v. King, 9 Met., 511the facts being substantially the same. To the same effect is Thornburgh v. Madren, 33 Iowa, 380. As sustaining the conclusion in the last case, Chambers v. Cochran & Brock, 18 Iowa, 187, is cited, in which Dillon, J., at some length, discussed the question before the court, and from an examination of the authorities, reaches the conclusion: “ If the creditor admits to the surety that he is paid this admission is conclusive, provided the surety acts upon it, and would be made to suffer by the creditors controverting the truth of the admission,” and that if the “ surety relying upon this conduct, and these acts of the plaintiff, had'relinquished securities, or failed to obtain security, or had otherwise been dam
The rule, therefore, seems to be if the surety has been lulled into security by the acts and conduct of the creditor, and in consequence thereof fails to obtain indemity or make an' effort to do so, he is wholly discharged, but if he only surrenders certain property held by him as collateral security to the principal debtor, and has not been otherwise damaged, he is discharged only to the extent of the value of the property surrendered. The defendant is brought within the last rule only.
As the value of the wagon was not shown it cannot be said the defendant has been damaged except nominally. The judgment should not be reversed because such damages were not allowed, if it be conceded such was not done. Watson v. Van Meter, 43 Iowa, 76.
Arrirmed.
Dissenting Opinion
dissenting. — I cannot concur in the foregoing opinion of the majority of the court. I have not the time to enter into an extended discussion of the point upon which I differ from the other justices, and must content myself with a brief statement of my conclusions.
The opinion of the majority concedes that the plaintiff stands in the shoes of Sherman. I reach the conclusion, however, upon this ground, that, inasmuch as defendant acted upon the declaration of Sherman that the judgment had been paid, in surrendering the spi’ing wagon, plaintiff is estopped to deny the payment of the judgment. The doctrine of estoppel being applicable to the case, we will not inquire what was the value of the property surrendered. If of any value it supports the estoppel.
The case differs from cases wherein the creditor surrenders property held as security for the debt for which the surety is bound. The surety in such cases can claim nothing more