Webb v. Baird

27 Ind. 368 | Ind. | 1866

Ray, C. J.

The appellees filed their complaint to have a bond declared void, which they had signed with one Wasson, as his sureties. The complaint charges that the appellees signed the bond and. delivered it to Wasson as an escrow, to bo held by him until he procured the signatures of two other persons, who are named, when it was to be delivered to the appellants, to be held by them as security for the faithful discharge by said Wasson of his duties as an express agent, acting’ for the appellants. It is alleged that at the time they executed the bond, the name of Wasson alone was written in the body of the instrument, and a blank was left for the names of his sureties, and that Wasson delivered the bond to the appellants without procuring the additional names, as he had promised; that at a subsequent date, a suit had been instituted by the appellants upon the bond, for a default by Wasson, but that the suit had been dismissed, and the appellants now threaten to commence proceedings in the United States Circuit Court. A copy of the bond is filed, and it contains the names of the persons who have signed it, and none other.

L. Barbour, T. A. Hendricks, O. B. Hord and A. W. Hendricks, for appellants. J. P. Baird and C. Cruft, for appellees.

A demurrer was overruled to this complaint. It was held in the case of Inhabitants of South Berwick v. Huntress et al., 53 Me. 89, that a party executing a deed, bond, ox-other instrument, and delivering the same to aixothex*, knowing that there ax’e blanks in it to he filled, in order to make it a perfect instrument, must he considered as agx’eeixxg that the blanks may he thus filled after he executes it. In this case, the filling of the blank with the names of the sux’eties was not inquired, and cannot affect the validity of the boxxd. The instx’ument came into the hands of' the appellants, perfect in form, and there is no averment that they had any knowledge of the agreement betweexi Wasson and the appellees. It is proper to state that this case was decided in the court below before the opinioxx ©f this court was pronounced in the case of Deardorff et al. v. Foresman, 24 Ind. 481. Eollowing the ruling in that case, we hold that the demurrer should have been sustained to the complaint.

The judgment is revex-sed, with costs, and the cause remanded, wdth directions to the couxt below to sustain the' demurx’er.