Gay, Administrator v. Murphy

Decision Date31 March 1896
PartiesGay, Administrator, Appellant, v. Murphy et al
CourtMissouri Supreme Court

Appeal from St. Louis City Circuit Court. -- Hon. James E. Withrow Judge.

Affirmed.

H. A Clover, Jr., and J. H. Zumbalen for appellant.

First. Possession of a bond by the obligee is prima facie proof of its delivery by the obligors who have signed it, even though it be incomplete on its face. 2 Greenl. Ev. [14 Ed.], sec 297; Williams v. Springs, 7 Ired. L. 384; Bank v. Ridgley, 1 Harr. & Gill. 324; Chandler v. Temple, 4 Cush. 285; Grim v. School Directors, 51 Pa. St. 220; Blume v. Bowman, 2 Ired. L. 338; Ward v. Churn, 18 Gratt. (Va.) 801; Towns v. Kellett, 11 Ga. 286. Second. The bond is prima facie valid and binding on the sureties, though not executed by the principal. If for any reason it does not bind them, the burden to show this is on those who have executed it and not on the obligee. Douglass Co. v. Bardon, 79 Wis. 641, 48 N.W. 969; Wild Cat Branch v. Ball, 45 Ind. 213; Chouteau v. Suydam, 21 N.Y. 179; Dillon v. Anderson, 43 N.Y. 231; Parker v. Bradley, 2 Hill (N. Y.), 584; Williams v. Marshall, 42 Barb. 524; Mayor v. Kent, 5 N.Y.S. 567; Cutter v. Whittmore, 10 Mass. 442; State v. Sandusky, 46 Mo. 377; Kurtz v. Forquer, 94 Cal. 91; Loew v. Stocker, 68 Pa. St. 226; Whitaker v. Richards, 134 Pa. St. 191; Trustees v. Scheick, 119 Ill. 579; Woodman v. Calkins, 34 P. 187; Cockrill v. Davie, 35 P. 958; Miller v. Tunis, 10 Up. Can. (C. P.) 423; State v. Bowman, 10 Ohio 445; Johnson v. Johnson, 31 Ohio St. 131; Cooper v. Evans, 36 L. J., ch. 432; L. R. 4 Eq. 45. Third. The contract and bond were executed on the same day and form parts of one entire transaction. But the bond being a sealed instrument imports a consideration and it was not necessary for plaintiff to aver or prove a consideration. Montgomery Co. v. Auchley, 92 Mo. 128.

M. Kinealy and Jas. R. Kinealy for respondent.

The bond and contract were offered in evidence together and excluded, and plaintiffs without offering any further evidence suffered a nonsuit. Respondents contend that the ruling of the court below was correct, on three grounds: First. Because the bond on its face showed it was without consideration. Parker v. Bradley, 2 Hill, 584; Ring v. Kelly, 10 Mo.App. 411; Smith v. Mollison, 26 N.Y.S. 653. Second. The covenant in the contract does not provide for payment of fees, etc., and even as to payments by the contractor to the owners provided for in it (clauses 12 and 13), it is only broken when the owners actually pay money on the claims mentioned in it. The covenant in the bond, however, even as to these claims mentioned in the contract, is very much more onerous, being to save harmless and indemnify, and is broken and a right of action arises on it, when the judgment is rendered or the contractor fails to pay, although the owners may never pay. See Smith v. Teer, 21 U. Can. Q. B. 412; Chace v. Hinman, 8 Wend. (N. Y.) 452; Pope v. Hays, 19 Tex. 375; Bennett v. Cadwell, 70 Pa. St. (253) 261; Fish v. Dana, 10 Mass. 46; Warwick v. Richardson, 10 M. & W. 284; Smith v. Howell, 6 Ex. 730. And hence the sureties on the bond are held to obligations which are not binding on the principal who does not sign the bond. Third. Because this bond, purporting on its face to be an obligation of a person as principal and the defendants as sureties is invalid and can not be enforced against these defendants, named as sureties, because not signed by the principal. Bunn v. Jetmore, 70 Mo. 228; Johnson v. Kimball Township, 39 Mich. 187; Wood v. Washburn, 2 Pick. 24; Russell v. Annable, 109 Mass. 72; Green v. Kurdy, 43 Mich. 279; Ferry v. Burchard, 21 Conn. 597; Board v. Sweeney, 48 N.W. 302; Curtis v. Moss, 2 Rob. 367; Sacramento v. Dunlap, 14 Cal. 421; Goodyear Dental Co. v. Bacon, 151 Mass. 460; State v. Austin, 35 Minn. 51.

Burgess, J. Gantt, P. J., and Sherwood, J., concur.

OPINION

Burgess, J.

Action to recover of defendants, as sureties of Andrew G. Wallin, damages aggregating the sum of $ 6,373.14, for breaches of a building bond. The penalty of the bond is $ 10,000. It was never signed by the principal, Wallin. It reads as follows:

"Know all men by these presents, That Andrew G. Wallin, of the city of St. Louis, Missouri, as principal, and P. C. Murphy, L. A. Bowlin, and Charles Green, as securities, are jointly and severally held and firmly bound unto Taaffe & Gay, of the city of St. Louis, Missouri, in the sum of ten thousand ($ 10,000) dollars, lawful money of the United States of America, well and truly to be paid to the said Taaffe & Gay for which payment well and truly to be made, we bind ourselves, and each of us by himself, our and each of our heirs, executors, and administrators firmly by these presents. Sealed with our seals and signed with our hands, this thirtieth day of April, in the year of our Lord eighteen hundred and ninety.

"The condition of the above obligation is such, that whereas, the said Andrew G. Wallin, principal, has on the day of the date of these presents, executed and entered into a certain contract for the erection of certain buildings in said contract described, which contract is hereto annexed: Now, if the said Andrew G. Wallin shall well and truly perform and fulfill all and every the covenants, conditions, stipulations, and agreements in said contract mentioned to be performed and fulfilled, and shall keep the said Taaffe & Gay, owners, harmless and indemnified from and against all and every claim, demand, judgments, liens, and mechanic's liens, costs and fees of every description, incurred in suits or otherwise, that may be had against them or against the buildings to be erected under said contract and shall repay the said Taaffe & Gay all sums of money which they may pay to other persons on account of work and labor done or materials furnished on or for said buildings, and if the said Andrew G. Wallin shall pay to the said Taaffe & Gay all damages they may sustain, and all forfeitures to which they may be entitled by reason of the nonperformance or malperformance on the part of said Andrew G. Wallin of any of the covenants, conditions, stipulations, and agreements of said contract, then this obligation shall be void, otherwise the same shall remain in full force and virtue.

"Witness our hands and seals.

"P. C. Murphy,

[SEAL]

"L. A. Bowlin,

[SEAL]

"Chas. Green,

[SEAL]

"Chas. Green.

[SEAL]"

The petition alleges the partnership between Taaffe & Gay, the death of Taaffe and the granting of letters of administration to plaintiff as surviving partner on the partnership estate; that said firm and Andrew G. Wallin entered into a written contract whereby said Wallin agreed to erect and complete for said firm a row of five ten-room brick houses, according to certain plans and specifications, for the sum of $ 21,285, to be paid in installments as the work progressed. The petition then set forth certain covenants in said contract, and properly assigns breaches thereof, as well also as breaches of the bond.

The answer is, first, a general denial, except as to matters thereinafter admitted; second, a special plea of non est factum, denying the delivery of said bond by the defendants or either of them to the plaintiff, and averring that the bond was received by the obligees with knowledge and notice that it was not the obligation of the defendants, in that it was not executed by the principal therein named, and in that neither of said defendants agreed or consented to the delivery thereof to the plaintiff without the signature of the principal therein named. The answer was verified by affidavit.

The reply admits that the principal did not sign or execute said bond, and denies the affirmative averments in the answer.

The case was referred to A. N. Crane, Esq., to try the issues.

Defendants admitted that all the signatures to said bond and contract are the genuine signatures of the parties thereto, but objected to the admission of the bond in evidence, on the ground that said bond is not regular or complete on its face, inasmuch as it described Andrew G. Wallin as principal, and is not signed by him, and it does not appear that the defendants, who signed as securities for Wallin, consented to be bound without the signature of said principal.

The contract was objected to as irrelevant and immaterial because the suit is on the bond. Said objections were sustained by the referee, and the plaintiff excepted to said ruling. The plaintiff being unable to proceed further because of said ruling, took a nonsuit with leave, and after an unsuccessful motion to set aside the nonsuit and for a new trial, he appealed.

The correctness of the referee's ruling sustaining defendant's objection to the admission in evidence of said bond and the building contract therein referred to, is the only question presented by this record.

At the hearing before the referee defendants admitted signing the bond, but denied its delivery, or that any person was authorized to deliver it for them until it had been signed by the principal therein named.

It is contended by plaintiff, that the bond is prima facie valid and binding on those who signed it, though not signed by the principal, and as it is found in the possession of the obligees, if for any reason defendants are not bound, the burden of showing that they are not rests upon them.

Upon these questions the authorities are in much conflict, and irreconcilable. The following authorities hold that an official bond, or a bond required by statute, not signed by the principal, when purporting to be executed by him, is prima facie in valid as to the sureties. Bunn v Jetmore, 70 Mo. 228; Sacramento v. Dunlap, 14 Cal. 421; Johnston v. Kimball Township, 39 Mich....

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