Stuart v. Livesay

| W. Va. | Jan 15, 1870

Brown, President.

This was an action of debt on a bond, purporting to be the bond of three obligors: plea, non est factum. Two of the parties who signed the alleged bond, together with two others, had been, and then were the securities of the principal obligor, in a pre-existing debt, in lieu of which the bond in question was to be given, that the two securities, ¥m, R. Stuart and John Stuart, respectively signed the said bond, with a distinct understanding that it was not to be binding on them until it was signed by William II. Shields and Thomas L. Peamster, the other two securities in the original note; that Charles A. Stuart, the principal obligor, stamped and delivered the bond to the obligee, but informed him, at the time, of the understanding aforesaid between himself and William R. and John Stuart, and the obligee then took the bond and said he would procure the signatures of said Shields and Feamster to it. This evidence was excluded from the jury as inadmissable under the plea of nonesl factum.

That plea put in issue every fact essential to the existence of the bond. Delivering was an essential fact to such existence. It will be observed that the securities, William R. and John Stuart, did not themselves deliver the bond in question to the obligee; but they respectively signed and delivered it to Charles A. Stuart, the principal obligor, with the understanding that he was not to deliver it as their bond until it should be signed by the two other parties named.

In delivering the bond to the obligee, the principal obli-gor, Charles A. Stuart, acted as the agent of William R. and John Stuart; and his agency was either general or special. If special, it must be strictly pursued. If general, the agent’s act might bind the principals, as to third persons ; though not strictly following his instructions, if within the scope of the general power, Had the agent then, in this case delivered the bond absolutely, notwithstanding his particular instructions and special authority, but without notice thereof to the obligee, it might become a question upon which there seems to be much contrariety of decision; but, inasmuch as the obligee was at the time of taking the bond fully advised by the agent of- the facts, and took on the terms specified, of procuring the signature required to make it obligatory, nothing can be clearer than that there was not in such case any such delivery of the bond, as the bond of the parties to be bound thereby; and being no such delivery, there was no such bond. The evidence was admissible under the general plea of non est faction, and the court erred in excluding it.

There was no error in refusing to give the instruction relative to the question of usury, as asked by the defendants, nor as given by the court.

For the error above stated the judgmént should be reversed, with costs to the plaintiffs in error, the verdict set aside, and a new trial awarded and the cause remanded for further proceedings, in conformity with the views above indicated.

The other judges concurred.

Judgment reversed.