Wilson, Receiver, &C., v. Linville, &C.

• Decision Date: 02 October 1894
• Citation: 96 Ky. 50
• Parties: Wilson, Receiver, &c., v. Linville, &c.
• Court: Kentucky Court of Appeals

Page 50

96 Ky. 50

Wilson, Receiver, &c., v. Linville, &c.

Court of Appeals of Kentucky.

October 2, 1894.

APPEAL FROM MASON CIRCUIT COURT.

WHITAKER & ROBERTSON, ROSS & OWENS, J. J. OSBORNE AND HANSON KENNEDY FOR APPELLANT.

COCHRAN & SONS AND WINFIELD BUCKLER FOR APPELLEE.

JUDGE HAZELRIGG DELIVERED THE OPINION OF THE COURT.

The county levy bond of Geo. L. Linville, sheriff of Robertson county, for the year 1890, was executed in the county court on December 16, 1889, in the following manner:

Geo. L., the principal, signed his own name, and also at his instance and in his presence, the name of Peter Linville as surety. Neal Ballengal, another surety, signed his own name. The name of Thomas G. Linville, the last of the sureties, was subscribed to the bond by the clerk, Jett, at the instance and request of Thomas G., who then made his mark following the middle letter "G." of his name. Following all the signatures and to the left, the clerk wrote the words: "Attest: M. B. Jett, Clerk Robertson County Court."

At the time of this transaction, an order was made in court approving and accepting the bond, but this order was not signed by the county judge until some three years later, when, in pursuance of a nunc pro tunc order to that effect, it was signed by the same person who was on the bench when the order of acceptance and approval was made, but who was then holding a different term of the office of county judge.

The admitted and undischarged liability of the sheriff on the bond in question is some thirty-six hundred dollars, and to prevent recovery against them in this action by the appellant, Wilson, Receiver, &c., the sureties make various defenses:

1. Peter Linville says that his name was subscribed as such surety by Geo. L. without written authority so to do.

2. Ballengal and Thomas G. Linville plead the same thing and say that this fact relieves them, as the actual as well as implied contract was that they were to be co-sureties with Peter.

3. Thomas G. also pleads that his name was subscribed by Jett, as his agent, without written authority to do so; and lastly, all the sureties rely on the failure of the county judge to sign the order approving the bond as set forth above.

We notice first the contention of Peter Linville that he is not bound on the bond by reason of the manner in which his name was signed. It is insisted for the county that as Peter was present in open court, and made the request of George L. to sign his name, it was his own act of signing, and not that of an agent. It seems to us that this exact point has been settled otherwise by this court. In Billington v. Commonwealth, 79 Ky., 400, the appellant's name, by his direction, was subscribed to a bail bond by an attorney at law in the presence of the judge taking the bond, and the Commonwealth contended that this act should be construed to be the act of the appellant, and not that of his agent. This court said: "Why a thing done in the presence of the one directing it is any the less an act of an agent for his principal than if the act was done in the absence of the principal, and by his previous direction, is difficult to conceive. In either case, the thing done is but the performance of a physical act, which is in conformity to the will of the principal, and in all such cases the law seems to contemplate that the will of this principal shall not be made binding upon him unless it be expressed in writing."

To the same effect are the cases of Simpson v. Commonwealth, 89 Ky., 412; Ragan v. Chenault, 78 Ky., 546; Dickson's Adm'r v. Luman, 93 Ky. 614.

Peter Linville being released, we are next to determine what effect, if any, this has on the liability of the co-sureties; and this question also we find substantially determined by this court. In English v. Dycus, &c., 9 Ky. L. R., 188, the county judge...