121 Ala. 399 | Ala. | 1898
— This is an action on a bond purporting to have been executed to the White Sewing Machine Co. by Saxon, Miller and Richardson to secure the faithful performance by Saxon of his duties as agent of the company. Miller and Richardson defended on the ground that they signed .the bond left it with the principal obligor with the understanding and upon the condition that it was not to be delivered to the obligee, and they were not to be bound by it until and unless “four or five other good men” should sign it. It is admitted that a bond delivered in violation of a condition that certain other named persons should subscribe it is not binding upon the sureties who sign upon the condition; but it is insisted that the same result does not flow when the condition is that other good men or “four or five other good men” shall execute it. In Moss v. Riddle & Co., 5 Cranch. 351, the plea of a surety to an action on a bond was that he delivered the instrument to a member of the partnership which was the obligee, in escrow to be his act and deed only on condition that the same should be afterwards signed, sealed and delivered by “some other friend of Weish,” the principal obligor. To this plea the plaintiffs demurred, 1st. Because a bond cannot he delivered to an obligee as an escrow. 2nd. Because .the
In the case of Guild, Register etc. v. Thomas, 54 Ala. 414, it is said in the opinion: “The defense presented by the pleas, and sustained by the rulings on the demurrers, and the instructions given to the jury, is that the defendant signed the bond as surety only, entrusting it to the principal obligor for delivery, but with authority to deliver it only on condition that other persons joined as sureties in its execution. Without authority he delivered it, such persons not having joined in its execution.” Upon this statement of what the pleas contained it was held that they presented a good defense to the action, and that the demurrers were properly overruled. It does not appear by the report of the case affirmatively whether the condition was merely that “other persons” should sign the bond or that certain named other persons should sign it. But the court must have considered this immaterial as the predicate laid down as a basis of the conclusion declared involves no specification or identification of such other persons. Upon looking to the original record in the case it is found that one of the two pleas averred a condition that the bond should be signed by Jesse Latham, while the other averred that the condition to delivery was that the bond should be signed by
In all of the many other cases decided by this court on this subject the condition averred was that other named persons should sign the instrument before its delivery to the obligee; and we have not been referred to any case in other jurisdictions bearing upon the question whether a surety putting a bond in escrow may stipulate that it shall not be delivered until other persons, or a given number of other persons not named or otherwise identified shall have signed it as sureties. But upon principle there would seem to be little difficulty in the point, or doubt as to its correct solution. The surety is under no obligation to sign the bond at all: his signature is his voluntary act. Nor is he Tinder any obligation to deliver a bond having signed it. Signing for the accommodation of the principal obligor, he may put such limitations and conditions upon his favor as seem to him proper or to his interest. The whole matter is at large with him; and having constituted the principal obligor his agent to deliver the bond he may impose whatever conditions he chooses upon the act of his agent. ' The condition may be quite onerous; it may be very difficult of performance; it may involve uncertainty as to what is necessary to performance; but whatever it is or may involve its imposition is within his clear and unfettered right: The thing to be done not being at all obligatory on him, he can decline to do it absolutely, and he may do it upon whatever conditions, capricious or otherwise, he may elect to impose. As he may subscribe upon condition that A. B. and O. I). shall also subscribe, he may make the obligation of his signature depend upon the subscription of an hundred or a thousand other named persons. Such a condition would be more difficult of performance than a condition that four or five other good men should
Appellant, however, insists that a different conclusion must be enforced in this case because of the fact that the bond thus delivered in escroAv to Saxon and by him in violation of the condition delivered to the obligee, contained the folloAving stipulation: “Each one signing this bond is bound according' to the purport of it Avith-out any regard to. any understanding that any person should also sign this instrument; and the- person to Avhom this is intrusted has absolute authority to deliver it, and no notice of its acceptance by said company shall be required; and the same is made and shall be construed Avithout reference to any other instrument or agreement Avhatever, and any claim of any arrangement or agreement Avith any of the signers hereof to discharge or release them or any of them shall be void and of no binding effect upon the White Sewing Machine Go. unless this bond shall be delivered up or discharged in writing by the said White SeAving Machine Oo. and it is to continue in full force until so..delivered or destroyed.” But we do
The plaintiff further insisted on the trial that defendants Miller and Richardson were estopped to set up the defense that said bond was delivered out of escrow in violation of said condition by the facts that they came to or were chargeable with knowledge or notice of the fact that Saxon, the principal obligor, had so delivered said bond and was carrying on a course of dealing with the plaintiff under the security supposed to be afforded by it, and with this knowledge or notice they stood by, made no objection to the wrongful delivery of the bond nor asserted its invalidity on account thereof and allowed the dealings between plaintiff: and Saxon to continue, plaintiff relying upon the bond to secure the credits it allowed Saxon in the course of said dealings. The replication to the foregoing effect is in the first place sought to be supported by proof that soon after the bond was delivered in escrow, Saxon begun to carry on the business for the obligee in respect of which it was intended the bond should be plaintiff’s security for his faithfulness, and continued to carry it on for about eight months during which the defaults complained of occurred, said defendants Richardson and Miller well knowing all the
But there is a tendency of evidence in the case to show that both Richardson and Miller after having actual knowledge that the bond had been delivered in violation of the condition and that Saxon was carrying on the business under it failed seasonably to repudiate responsibility upon it and allowed the dealings between plaintiff and Saxon to continue on the faith of the bond. The bond was signed by these defendants on August 16,1893, and Saxon immediately thereupon entered upon the business to which it related, and continued therein for about eight months. Saxon testifies that four or five months “after he had been engaged in the business under said bond he told” Miller and Richardson that the bond had not been signed by any one else except them. Miller testifies that “four or five months, or may be longer, after Saxon had been selling White sewing machines here in Jasper, he went to him and asked him about the bond, and Saxon told him for the first time that he had delivered the bond without procuring said requisite number of men.” It is true that this witness further testifies that this conversation with Saxon was shortly before this suit was begun, and after the letter written by witness to plaintiff on April 9, 1894, which letter is an admission of liability on the part of Miller. The suit was instituted on May 16, 1897. Richardson testifies that
■ That other defense is, that, the bond was altered .after they had signed it, in this, that one Ware, who was the agent of the obligee, but who was not present 'at' the time they or either of them signed the instrument subscribed his name thereto as an attesting witness- to their signa: tures and that they had no knowledge or notice of this until this suit was brought' or just before. The facts of such subscription by Ware and of fheir ignorance of it were'proved beyond controversy at the trial, as also that he was plaintiff’s agent in and about the making of .this bond, that it was handed to him by- Saxon, that he then carried it to his attorneys who advised him it .was a good bond, that he then1 said he was entirely satisfied'-with it; and thereupon subscribed his name to it as' a witness.and kept it and carried it off with him for the obligee; and- it
■ .There has been no. adjudication of this question by this court. The authorities are -conflicting upon. it. In the American & English-Encyclopaedia oh .Law is .this text: “It is a material, alteration of an.unattested'' instrument to insert, subsequent to its execution, the sige nature of an attesting witness. Such attestation furnishes a. distinct and different medium' of proof of the execution of the instrument, and, in some States,.'excepts it from the. operation of the statute of limitations.” 2 Vol., p. 245. And upon the general principle that .any alteration is material which changes the. effect • and operation of the contract on the face of the paper, .either by modifying original stipulations br by adding new ones express or implied, it would seem clear that, the addition of an attestation, which imports the. agreement of the parties upon and selection by them of a- person ¡to. be the repository of the proof of execution and of the, surrounding circumstances, Ellerson v. State, 69 Ala. 1, and under our laws has the effect of requiring the attesting witness to be called to prove execution, and of authorizing execution to be proved if he be dead or beyond seas by proving his signature, materially affects the status and rights of parties under the contract; and, as has been often, said by.this court, it is of no consequence whether' the'- alteration -if allowed to opérate would be beneficial or detrihlentáil to the party sought to be charged on the. contract; the important question is not that, but whether the integrity and identity of the contract;has been’changed. —Anderson v. Bellinger & Ralls, 87. Ala. 334; Montgomery v. Crossthwait, 90 Ala. 553, 569-70, 571. The above-.quoted text-of the Encyclo-paedia is supported, by. the courts-of . last resort of Maine, Massachusetts and Pennsylvania—Brockett v. Mountfort, 11 Me. 115; Homer v. Wallis, 11 Mass. 309; Marshall v. Gougler, 10 S. & R. 164 Adams v. Ferge, 3 Met. 103; Milberry v. Storer, 75 Me. 69; Henning v. Werk
We find no error in the rulings of the court as to the sufficiency of the pleas setting up this alteration or as to the insufficiency of the replication to said pleas. The evidence was free from conflict to the proof of the.aver-ments of these pleas, and upon them the court properly gave the affirmative charge for the. defendants Richardson and Miller.
Affirmed.