Baker County v. Huntington

• Decision Date: 18 December 1906
• Citation: 87 P. 1036,48 Or. 593
• Parties: BAKER COUNTY v. HUNTINGTON et al.
• Court: Oregon Supreme Court

87 P. 1036

48 Or. 593

BAKER COUNTY v. HUNTINGTON et al.

Supreme Court of Oregon

December 18, 1906

Appeal from Circuit Court, Umatilla County; W.R. Ellis, Judge.

Action by Baker county against A.H. Huntington, A.L. Brown and others. From a judgment for plaintiff, defendants A.L. Brown and others appeal. Affirmed.

J.H. Raley and C.A. Johns, for appellants.

Leroy Lomax and Gustav Anderson, for respondent.

MOORE J.

This is the third appeal by the defendants, A.L. Brown, D Cartwright, J.T. Fyfer, James Fleetwood, and J.W. Isenhofer from a judgment rendered against them in an action upon an instrument alleged to be a sheriff's bond as tax collector. As grounds for a reversal of the judgment, it is contended that errors were committed in refusing to take from the jury the undertaking which forms the basis of this action; in refussing to give a judgment of nonsuit; and in declining to instruct the jury as requested to return a verdict for the defendants. These alleged assignments of error are founded on the assumption that the testimony introduced by the plaintiff was insufficient to show that Huntington, as sheriff of Baker county, ever had any authority from the defendants, as sureties on the bond to deliver that instrument to the county court of that county. The legal principles so insisted upon were presented to, and considered by, this court on the former appeals (46 Or. 275, 79 P. 187, and 47 Or. 328, 83 P. 532), and the conclusions there reached have become the law of the case precluding a review of the questions suggested. Applegate v. Dowell, 17 Or. 299, 20 P. 429; Portland Trust Co. v. Coulter, 23 Or. 131, 31 P. 280; Stager v. Troy Laundry Co., 41 Or. 141, 68 P. 405; Pacific Biscuit Co. v. Dugger, 42 Or. 513, 70 P. 523.

An exception having been taken to the following part of the court's charge, it is maintained that an error was committed in giving it, viz.: "(3) I instruct you that, as a matter of law, the lack of names of the principal and sureties in the body of the bond, lack of justification by two of the sureties, minutes or entries opposite the names of the sureties who signed, and failure of the principal to sign the bond, are not fatal defects, and do not, of themselves alone, render the bond void. The effect of these was to put the county upon inquiry, at the time Huntington offered the bond, as to Huntington's authority to deliver the same as a completed obligation for the purpose claimed by the plaintiff, and the plaintiff will be held bound by any facts which you find it would then have ascertained by reasonable inquiry and investigation."

To render the instruction complained of intelligible, it is deemed proper to set out a copy of the bond, which, omitting the justification of the sureties thereon, is as follows: "State of Oregon, County of Baker--ss:

"Whereas, at an election held on the 4 day of June, 1900, A.H. Huntington was duly elected sheriff of the County of Baker, State of Oregon, we, A.L. Brown, ______, and ______, hereby undertake that if the said A.H. Huntington shall not pay over according to law all money that may come into his hands by virtue of such office, and otherwise well and faithfully perform the duties of such office, that we, or either of us, will pay to the state of Oregon the sum of ten thousand dollars.

For $1,000.00 A.L. Brown. (Seal.)

For $2,000.00 James Fleetwood. (Seal.)

For $1,000.00 D. Cartwright. (Seal.)

$1,000.00 Harry A. Duffy. (Seal.)

1,000.00 J.T. Fyfer. (Seal.)

1,000.00 J.W. Isenhofer. (Seal.)

As evidence of the ability of the sureties to perform the undertaking, and as to the surrender of the instrument, we take the following excerpt from a former opinion: "It appears from accompanying certificates that Duffy, Fyfer, Cartwright, and Isenhofer justified, but not so with Fleetwood and Brown. It is alleged that Huntington delivered the writing obligatory to the county court of Baker county as and for his additional bond as sheriff and ex officio tax collector of that county, and that the same was accepted by the court." 46 Or. 275, 79 P. 187. Considering the clauses of the instruction in the order stated, it is the signatures of the obligors to the bond, and not the insertion of their names in the body thereof, that give validity to the instrument and render them liable for a breach of its conditions. 5 Cyc. 732 and 739; Murfree, Official Bonds, § 168. The statute, requiring the execution of a supplemental undertaking, is as follows: "Before entering upon his duty as tax collector, the sheriff shall give a bond, signed by some responsible surety company, or some responsible surety or sureties as approved by the county court, conditioned for the faithful performance of his duties as such tax collector, in such amount as the county court shall direct, and such bond if signed by a surety company shall be paid for by the county court." B. & C. Comp. § 3094. The legislative assembly has not demanded that the sureties to the bond of a sheriff as tax collector should justify, and, in the absence of an enactment to that effect, the signatures of the obligors without evidence of their qualifications validates the instrument, if it is approved by the county court. Du Boise v. Bloom, 38 Iowa, 512. An examination of the bond hereinbefore set out will show that preceding the name of A.L. Brown appear the word and figures, "For $1,000.00," and that similar memoranda are prefixed to the names of the other obligors, which words and figures are designated by the court as "minutes or entries." What such word and figures may mean is unimportant, so far as the plaintiff is concerned, for the bond on its face being joint and several, the prefixing to the names of the sureties of the minutes or entries adverted to cannot limit or alter their liability which is fixed by the terms of the instrument. Dangel v. Levy, 1 Idaho, 722. It has been held that the failure of a principal to sign a bond when his name appears in that capacity on the face of the instrument relieved the sureties from liability thereon for a delivery and acceptance thereof without their knowledge and consent. Johnston v. Kimball Township, 39 Mich. 187, 33 Am.Rep. 372; Hall v. Parker, 39 Mich. 287. In the case at bar, though the bond on its face states that Huntington was duly elected sheriff, etc., he is not designated therein as principal, and, as the only person named as a party is A.L. Brown, who signed the instrument, no notice on that account could have been imparted to the plaintiff of any failure to execute the undertaking.

As the other parts of the instruction complained of state the defendants' theory of the case they will not be considered, believing that no error was committed as alleged.

Exceptions having been taken to the following parts of the charge, it is contended that errors were committed in instructing the jury as follows:

"(5) It is not necessary for the plaintiff to show express authority from the defendants to Huntington to deliver the bond. Huntington's authority may be implied from the acts and conduct of the sureties. The mere signing of them of the uncompleted and imperfect instrument in the manner in which they signed it, and leaving it with Huntington without any express restriction as to its delivery, is not enough, as a matter of law, to show authority to deliver it, but it is an important fact, if you find it to be a fact, to be considered by you along with all the other evidence in determining whether the sureties intended to vest Huntington with authority to deliver the instrument in its then condition as their act and deed, or whether the understanding was that the bond should not be delivered until the aggregate amounts assumed by the several sureties should equal the face of the bond.

"(6) The uncompleted condition of the instrument in the particulars to which I have referred, although in itself not a fatal defect, should be considered, as also should the attempt to limit the liability of the sureties, by writing the amount each intended to assume, if you find that the figures were placed there by the sureties or at their direction for any such purpose, opposite the signatures. If you are satisfied from the evidence that the defendants wrote or caused to be written these figures opposite their signatures in an attempt thereby to limit their liability, you should consider that fact. All these are important factors, and should be considered. And if, at the time they executed the bond, they imposed no restrictions upon its delivery, and nothing was said about that matter or the obtaining of other sureties, this is an important fact...