59 Tex. 207 | Tex. | 1883
We are of the opinion that the omission of the name of any payee or obligee whatever, from the bond in question, is a fatal objection.
The statute in force when the bond in question was executed (1 Pasch. Dig., art. 3895) prescribed its requisites. Among others, it was required that there should be a person in whose favor the bond should be executed, and who should be named officially in the bond as the person with whom the obligee and his bondsmen contracted. Such a person is as essential a party to a bond as a payee to a promissory note, or as a drawee or acceptor to a bill of exchange.
It was the business of the officer, charged with the duty of passing upon the sufficiency of the bond and of approving it, to see that the blanks were all filled before receiving it. If he failed to take the proper bond, he was liable to the party for the damage resulting from his neglect.
It is the duty of courts to construe and enforce contracts. To make contracts for parties is something quite beyond their province.
We have considered the case very fully, and have examined with great care the case of Rose v. Winn, 51 Tex., 548, as well as such of the cases cited in that opinion as are accessible to us, but are unable to find in them any authority whatever for sustaining a bond so defective as the one under consideration.
Rone of the cases go to the length of supplying necessary parties to bonds. If the name of the obligee may be omitted without affecting the validity of the bond, why may not the amount of the bond also be left blank? By the same reasoning, why may not both the amount aiid the payee be omitted ? Or the signature of the principal and the sureties be dispensed with?
A suit cannot be maintained on the instrument set out in the pleadings. It is neither good under the statute or at common law. It is in fact an imperfect, unfinished instrument. With proper pleading and proof, the principal, who is liable individually, independent of the bond, can be held responsible for such sums of money as he may be found justly to owe to his late wards.
The judgment is reversed and the cause remanded.
Reversed and remanded.
[Opinion delivered April 10, 1883.]