Hessell v. Johnson

¶1Defendants were sued jointly upon an-attachment bond given for the release of attached property belonging to defendant Johnson, who signed the bond as principal, the others being charged as sureties.

¶2It appeared on the trial that Royce signed the bond on the-express understanding, which, in our opinion, was equivalent, to a condition, that it should be signed also by one John K. Stack as co-surety, and that he had reason to believe this-would be done. This condition was mad.e to Johhson, the-principal, and, as he claimed and swore, was made known to-plaintiffs’ attorney before any other surety signed. It-appears, without contradiction, that the bond was brought to-the sheriff and to the plaintiffs’ attorney while Royce was the only surety on it, anct that the subsequent procurement of Burns was had without any conference with Royce. Stack refused to sign it at all when asked. There was also testimony that the name of Stack was written as a co-obligor in the condition of the bond, though not -in the beginning, when. Royce signed, and was erased, and the name of Burns put in. its stead.

¶3Immediately on the receipt of the completed bond, the-property was released. Some time thereafter, but on the same day, there was testimony tending to show that Royce-heard of the facts. There was no testimony that he con-sen ted to the substitution.

¶4The court below charged the jury.that Royce made Johnson his agent to see that the bond was executed, and was. bound at once to notify the plaintiffs when he learned that. *625his authority had been abused, and that he was estopped from complaining, and that judgment should be rendered against him. .

¶5This ruling entirely ignored the fact that there was testimony tending to show- express knowledge of Royce’s understanding that Stack was to sign. If the bond was accepted with notice that Royce had never authorized it, and the property discharged with that notice, it is impossible to hold that Royce was in fault for not giving further notice. As to him, there had never been any delivery of the bond at all. A delivery to an associate, to have a writing completed, is in no sense a delivery. Parties act at their peril who act under notice, and we know of no rule of law requiring a second notice.

¶6If Northrup, the attorney, and Oliver, the sheriff, had no actual notice, the question further comes up concerning implied notice, for if they had either the defense is complete.

¶7It was held in Hall v. Parker, 37 Mich. 590, that a surety may make any conditions he chooses to make in signing a bond, before it is delivered, and that where it is not signed by a party whose signature was required as a condition of his signing he would not be bound.1 In that case the bond was for use in a legal proceeding, and was analogous to the present one. The name of the principal was written in the bond, but he did not sign it, and the surety was held discharged, as he never consented to its being delivered without the principal’s signature, and that the form of the bond notified every one of its condition. The same doctrine was held in Johnston v. Kimball Township, 39 Mich. 187. In Brown v. Probate Judge, 42 Mich. 501, as in McCormick v. Bay City, 23 Id. 457, it was held that a bond required to be filed in a public office, which had been signed in blank by a *626surety, and intrusted to another person to be filled out, bound the surety, and that the occupant of such an office, •who had no interest in the matter, and was expected to be found in his office, was not bound to leave the office and make personal inquiries.

¶8But, under the decisions before cited, the fact that Stack’s name was in the bond was notice enough to at least put the parties on inquiry. By erasing that name they changed the ■obligation which Royce had signed. It ceased to be his bond :at all. If done without his consent, after delivery, it would have been such a material alteration as, if fraudulent, would have made it a forgery.

¶9We think the rulings were erroneous. There was nothing in the case tending to show an estoppel, and, had there been, it must have-been left to the jury.

¶10■The judgment must be reversed, with costs, and a new trial ordered.