101 Mo. 353 | Mo. | 1890
The state, as plaintiff, brought this suit against the sureties on the official bond of Peter J. Reid, who was elected collector of Knox county in November, 1884. Reid seems to have paid over the county revenues collected by him, but he made default to the state in the amount of fourteen thousand and ninety-two dollars, and hence this suit. The case was tried by the court without a jury, the trial resulting in a judgment for the defendants, to reverse which the state prosecutes this appeal.
Many matters of defense were set up in the answers filed by the defendants, and evidence was received in support of them; but the court, at the close of the trial, excluded the evidence bearing upon these defenses, except that offered in support of that part of the answer which, in effect, states that the bond sued upon is not the obligation of the defendants. This is, therefore, the only defense before us on this appeal.
In August, 1885, Reid presented to the county-court of Knox county a bond in the penal sum of thirty thousand dollars for approval, signed by himself and the following sureties, in the following order: P. H. Early, Patrick Fleming, I. D. McPike, Thomas Bresnen, George Dailing and Thomas Kearnes. At the same time, Dailing, one of the sureties, appeared before the
The defendants asked no instructions. The state asked one only on this branch of the case, to the effect that the evidence concerning the erasure of the name of Railing constituted no defense, which the court refused. The plaintiff is, therefore, here standing on a demurrer to the evidence of the defendants.
1. The state places much reliance upon the proposition that the circuit court should have excluded all of the parol evidence of what was said and done in the
2. The plaintiff cites, and with confidence relies upon, a line of. authorities, of which State to use v. Potter, 63 Mo. 212, is the leading one in this court. That was a suit on a bond of Turley, as guardian of certain minors, with Potter and another as sureties. Potter’s defense was that he signed the bond on the condition that it would be signed by one Bothrick, as surety, and that it was filed by Turley without having procured the signature of Bothrick. Says the court: “Here the surety who defends this action had invested the principal with an apparent authority to deliver the bond; and there was nothing on the face of the bond, or in any of the attending circumstances, to apprise the official who accepted it that there was any
When the county court accepted the bond in question, it had full knowledge of the fact that the name of Dailing, as one of the sureties, had been erased, and the name of Cain substituted therefor. The circumstances all tend to show that the court knew this had been done without the knowledge or consent of the other sureties.
3. The surety has the right to stand upon the very terms of his contract; and it is well-settled law that any material variation or alteration in the obligation or contract upon which he is bound will discharge him, unless he consents to the alteration before made, or by some subsequent act ratifies it. Burge on Suretyship, 214; Baylies on Sureties & Guarantors, 260. The principle of law just stated is not controverted by the plaintiff, but its application to the case in hand is denied. It is therefore deemed best to make a concise statement of the facts of some of the cases relied upon by the defendants. Martin v. Thomas, 24 Howard, 315, was a suit upon a delivery bond executed to a marshal in a replevin suit. After the bond had been executed by the principal and three sureties, the principal, with tlie consent of the marshal and without the consent of the sureties, erased his name. This erasure, it was held, constituted a variation of the contract of the sureties, and discharged them from all liability on the bond.
Smith v. United States, 2 Wall. 219, was a suit upon a bond given by Pine as marshal, the bond having been approved by the district judge. Smith, one of the sureties, defended on the ground that the bond was not his deed.. The evidence showed that Smith, Hoyne and others had signed the bond as cosecurities for Pine. Hoyne became dissatisfied and requested Pine to erase his name, which was done, but by whom did not appear. The name of Hoyne was erased when the bond was presented to the judge for approval, and the judge had been told by Hoyne that he wanted his name erased. The remaining sureties, except Smith, appeared before
The suit in State v. Craig, 58 Iowa, 238, was upon the bond of the warden of the penitentiary. There were some eleven sureties as the bond stood when produced in evidence, and the defense was material alteration. The evidence showed that one Smith signed it as a surety after the first seven signatures had been obtained, and the other sureties signed after Smith. Before the names of the sureties had been inserted in the body of the bond, and before approval, Smith’s name was erased without the consent of any of the other- sureties; the person signing before Smith did not know that he had signed until after the suit had been commenced. It was held that thohgh Craig, the principal, had been intrusted with the bond to procure signatures and present it for approval, yet, as to the sureties signing subsequent to Smith, Craig was not authorized to deliver the bond after it had been altered to their prejudice, and that those sureties were discharged because the instrument sued upon was not their contract. The sureties who signed before Smith were also discharged on the ground that it would be presumed that they signed with the understanding that other sureties would be procured in such a way that all would be held and bound as cosureties.
In the case of Bracken County Commissioners v. Drum, 80 Ky. 388, the suit was based upon a sheriff’s bond, and the defense was non estfactum. Ten persons signed a power of attorney authorizing the county clerk to sign their names to the bond. At least two of the
Here the bond, when first presented to the county court for its approval, was a completed bond. As then presented, it expressed the contract of the sureties. They agreed to be jointly and severally bound, biit they did not agree that the name of Cain should be substituted for that of Hailing. The alteration in the obligation was a material one, and was made in the presence of the county court and without the knowledge or consent of the sureties, and the bond, as approved, is not the obligation of the defendants. The authorities cited are in point, and all lead to the conclusion just stated. Some of them, and others which we have not cited, go further in favor of the discharge of sureties than we are disposed to go. If the name of Hailing had been erased and that of Cain substituted without the knowledge of the county court, then we have no hesitancy in saying that the sureties should not be discharged, because, by intrusting the bond to Reid, they put it in his power to mislead and deceive the court, and they should suffer the consequences. Here the court was not misled, but accepted the bond, knowing that it had been altered without the knowledge or consent of the other sureties. Hnder these circumstances the court had no right to disregard the rights of the other sureties.
The argument is made that when these sureties signed the bond and left it with Reid, the principal, to procure other signatures and present it to the county
It is true the defendant Cain signed the bond after the alteration had been made, but the evidence is to the effect that he was wholly ignorant of the fact that Bailing had ever been a party to the bond. As to him, the bond is void because he signed it upon the supposition that the other parties were in fact cosureties, and he never undertook to become the sole surety. Howe v. Peabody, 2 Gray, 556. But it is further argued that the erasure of Bailing’s name was spoliation only, and did not affect the liability of any one on the bond. If the bond had been delivered, and the erasure thereafter made by county officials, then Medlin v. Platte County, 8 Mo. 235, would be an authority for the position thus taken by plaintiff. It is in effect said in that case that the term alteration is usually applied to the
4. The plaintiff insists that the court erred in refusing an instruction, to the effect, that if the bond was approved by the court on the fourth of August, 1885, and the defendants knew that Reid occupied the office of collector, and collected the revenues for the years 1885 and 1886, and made no objection thereto, then they are estopped from making the defense that the bond was altered by the erasure of Hailing’s name.
There is an abundance of evidence tending to establish all facts stated in this refused instruction, but there is not a word of evidence tending to show that the defendants during this time knew that Hailing’s name had been erased. The only evidence to which our attention is called is that they knew nothing about the erasure. An estoppel cannot arise until it is shown that they knew of the alteration and thereafter made no objection to the performance by Reid of official duties by virtue of having given the bond in question. No such state of facts is shown or hypothetically stated in the instruction, and it was, therefore, properly refused.
It is useless to notice the other minor suggestions made by the plaintiff. They do not meet the real and
The judgment is affirmed.