17 Mo. App. 569 | Mo. Ct. App. | 1885
delivered the opinion of the court.
The record shows that this canse was tried in the circuit court at the February term, 1884, and that a motion for new trial was filed within the proper time. No entry appears in the bill of exceptions or elsewhere, of a continuance of the motion, but it was overruled on a day in the next succeeding term. The respondent therefore claims, on authority of Givens v. Van Studdiford (13 Mo. App. 168), that we should disregard the motion for a new trial, as having passed out of the jurisdiction of the trial court, for want of a continuance. This court, in Givens v. Van Studdiford, refused to presume successive continuances of a motion over the lapse of three terms. But it has never declined to consider a cause upon its merits, when they might be reached through the presumption of a single continuance of such a motion.— Nelson v. Withrow, 14 Mo. App. 270.
The official bond given by defendant, Tegeler, as treasurer of the plaintiff, purports on its face to be the bond of Fred. Tegeler, as principal, and E. W. Hehmann and F. Meyer, as sureties. It is not signed by either of the alleged sureties, but is signed by the defendants Gl-eorge Fichtel and Henry Wittich, whose names appear nowhere else in the instrument, and by the defendant, Tegeler. There was testimony tending to show that, when Fichtel and Wittich were asked to sign the bond, they saw the names of Hehmann and Meyer written therein, and signed only upon the express condition and understanding with Tegeler, that the bond should also be executed by those persons before being presented for acceptance by the plaintiff. That, when the bond was offered at a meeting of the plaintiff club, objection was made on account of the absence of the signatures of Hehmann and Meyer, and a motion to accept the bond was defeated for that reason. Witnesses disagreed as to
The legal question thus presented has been a subject of judicial discussion in very many cases, in Missouri and elsewhere. But the opinion of Chief Justice Sherwood in State to use, v. Potter (63 Mo. 212), contains such an exhaustive review of the leading adjudications, and its conclusions are so thoroughly harmonious with the sound principles which underlie apparently conflicting decisions that there is no need to look any further for general light on the subject, even aside from the controlling authority of the opinion itself. Throughout the opinion a distinction is carefully observed between cases wherein the bond is complete and regular on its face when presented to the obligee, and there is no knowledge nor any reason for a suspicion on his part that the execution was otherwise than unconditional, and those cases wherein, from manifest incompleteness or irregularity in the bond itself, or from more direct information, the obligee when accepting the bond is made aware of the conditional nature of the undertaking. It is clearly shown that in the first mentioned class — of which the case then under consideration was one — the defence here set up cannot be entertained. It was held therefore that the trial court had erred in refusing an instruction to the .effect that, although it might appear that Potter, the surety, signed the bond under an agreement with Turley, .the principal, that it was not to be filed or delivered until also executed by Bothwick as surety; “yet if said bond was afterwards, in violation of said agreement, filed by said Turley in the county court of Pettis county, Missouri, and was approved by said court, and said bond was, when so filed and approved, complete and regular upon its face, and the officers of said court had no notice of said agreement between said Turley and said Potter, then such agreement constitutes no defence to. this suit, and the court must find for the plaintiff.” Said the
.It thus appears that, while passing upon a case wherein the defence under consideration was held to be insufficient, our Supreme Court pointed out the essential conditions which make it so, to-wit: The completeness and regularity of the bond on its face, and the absence of any attendant circumstances likely to apprise the obligee of the conditional nature of the surety’s undertaking. It is impossible to consider the emphasis given to the conditions, as productive of the result, without inferring a1 contrary result from opposite conditions. The cases in which the defence was sustained are referred' to, not for the purpose of questioning their authority but in order to show that their different conditions made them inapplicable to the case in hand. The same cases are, however, clearly in point as authorities for the one here before-us.
The bond sued on was, when presented to the club, incomplete on its face, and not ready for delivery. It averred that Hehmann and Meyers were parties to it, as sureties, and no language could have more explicitly declared that they were to sign, in order to make it complete and deliverable. Members of the club perceived this and promptly raised the objection. It was not objected that the names already signed were insufficient in responsibility. On the contrary, it seems to have been understood that a bond properly drawn and filled would be acceptable, with no other names as sureties. A form was accordingly given to Tegeler, so filled in, for him to-obtain the same signatures, but he failed or neglected to-procure them, and never in fact presented such a completed bond. The testimony clearly shows that the bond
The circuit court appears to have proceeded on the theory that the defendant sureties were bound, notwithstanding the conditions stipulated for in their signing, and although it appeared on the face of the bond, when presented, that it was incomplete and not in a proper condition for delivery in accordance with its terms. We think that this was an erroneous application of the law to the facts of the case, and therefore reverse the judgment and remand the cause.