| Ark. | Dec 17, 1892
Proof that such of the defendants as subscribed the bond did so upon the condition that other persons named in it as sureties would sign it, was not incompetent. It was not designed to vary the terms of a written instrument, but to show that there never was a complete execution of such instrument. For this purpose it was competent. Ware v. Allen, 128 U.S. 590" date_filed="1888-12-10" court="SCOTUS" case_name="Ware v. Allen">128 U. S. 590.
We are of opinion that the evidence sustains the court’s finding that the subscribing sureties signed their names upon the condition that J. C. Gilbreath, whose name appeared in the body of the bond as a surety, would sign it. Such being the fact, the writing did not become the bond of said sureties, unless Gilbreath signed it. That an observance of such conditions is essential to the complete execution of the bond and a pre-requisite to its validity, as to all persons who dealt with it knowing- or having notice of the condition, seems to be established without division among the authorities; and where the condition exists, the fact that those who have not signed it are named as sureties in the bond is held to give notice of it. Pawling v. U. S. 4 Cr. 219; Dair v. U. S. 16 Wall. 1" date_filed="1873-05-18" court="SCOTUS" case_name="Dair v. United States">16 Wall. 1; Butler v. U. S. 21 Wall. 272" date_filed="1875-02-22" court="SCOTUS" case_name="Butler v. United States">21 Wall. 272; State v. Churchill, 48 Ark. 440; Sharp v. U. S. 4 Watts, 21" date_filed="1835-05-15" court="Pa." case_name="Sharp v. United States">4 Watts, 21; S. C. 28 Am. Dec. n. 679; State Bank v. Evans, 3 Green, L. Rep. 155; Public Officers, Throop, secs. 259-60-1-2-3.
This case, then, d epends upon the question whether J. C. Gilbreath signed-the bond.
It is admitted that he did not subscribe it in the usual manner ; that his name is written in the face of it as á surety; that he signed an affidavit as to hisü solvency, which is attached to it; and that he certified and signed the jurat to the affidavit of another surety which is likewise attached to it. It would not be inferred that he signed the bond from an inspection of the bond proper ; but it is insisted that he either intended to adopt the writing of his name in the bond as a signature to it, or that he intended his signature to the jurat and affidavit to be a signature to the bond, and that such intention is necessarily to be inferred from his permitting the bond to pass to the principal’s hands and be delivered b}r him.
Gilbreath died before the suit was brought, and no explanation of his conduct could be made by him. . How the bond passed from his hands after he signed the affidavit and jurat does not appear, and there is no showing that he knew it had been delivered. No explanation is furnished of his failing to subscribe it, and the question as to his signing it is to be determined from the fact that he did not subscribe it and the circumstances stated.
Under the law there can be no objection to the manner or form in which an obligor makes his signature to a bond, provided it appears that he made it for the purpose of binding himself. “The question being always open to the jury whether the party, not having signed regularly at the foot, meant to be bound by it as it stood, or whether he left it unsigned because he refused to complete it.” Brandt on Suretyship and Guaranty (2d ed.), p. 127, sec. 89.
Or, as is elsewhere stated, it does not matter where the signature is if it was made to authenticate the bond as the act of the party. The effect of the court’s finding is that Gilbreath did not intend, by any signature or act of his, to authenticate the bond as his act; and we can not disturb that finding unless the contrary is necessarily to be inferred from his acts. That he contemplated signing it, we think must be inferred; but that he ever at any time intended that it should then and there become his bond, or that any act done by him should have the effect of a signature, is not so clear. Affidavits of sureties perform no essential part in making such bonds ; the approving officer must be satisfied that the sureties are solvent, but may act upon his own knowledge or upon affidavits. It is usual to prepare and tender such affidavits, but there is no particular reason why they should not be prepared before the bond is signed ; to make them, the presence of an officer authorized to administer oaths is necessary, and it may. not at all times be had; and if the facilities for making the affidavits are arranged before the party contemplating becoming a surety is ready to consummate the relation, we know no reason why he should not make the affidavit and withhold his signature from the bond until he is satisfied to execute it.
The making of the affidavit is in no legal sense the final act in making the bond, so that it can be understood as intended to be a consummation of it ; nor is an approving officer justified in accepting as the bond of any person an instrument not subscribed by him, merely because he is named in the bond as surety and has made an affidavit with a view to becoming such. It is not usual for persons intending to become sureties to execute a bond in that way; and where such a person might have signed the bond but did not, a reasonable inference is that he made the affidavit as a preliminary to the completion of the bond, and, before the time came to sign it, changed his purpose. As two inferences could be drawn from the circumstances, we must accept that in support of the verdict.
The plaintiff insists that, though this be true, the bond is validated, against the sureties who signed it, by the act of 1891. But that act does not expressly or by any necessary implication apply to existing bonds, and it must therefore be held as intended to apply only to bonds to be made thereafter. Potter’s Dwarris, p. 162 n. 9; Sutherland, Stat. Con. sec. 481; Couch v. McKee, 6 Ark. 484; Trapnall v. Burton, 24 Ark. 385.
Whether if so intended it could have a broader application, we need not determine. See 1 Whar. Con. sec. 368; New York, etc., R. Co. v. Van Horn, 57 N.Y. 473" date_filed="1874-05-05" court="NY" case_name="New York & Oswego Midland Railroad v. Van Horn">57 N. Y. 473.
There should have been a judgment against the principal in the bond, upon the facts found, and the judgment that should have been entered below will be entered here. The judgment as to the sureties is affirmed.