Baker County v. Huntington

• Decision Date: 23 January 1906
• Citation: 83 P. 532,47 Or. 328
• Parties: BAKER COUNTY v. HUNTINGTON et al.
• Court: Oregon Supreme Court

83 P. 532

47 Or. 328

BAKER COUNTY v. HUNTINGTON et al.

Supreme Court of Oregon

January 23, 1906

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

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

William Smith, for appellants.

Thomas G. Greene, for respondent.

BEAN C.J.

This is an action upon an instrument alleged to be a sheriff's bond as tax collector. The facts are substantially stated and the law applicable thereto declared, in the opinion on the former appeal. 79 P. 187. Upon the second trial it appeared that Huntington was elected sheriff of Baker county in June, 1900, and qualified by taking the oath of office in July, and giving the undertaking required by section 2392 Hill's Ann.Laws. His bond as tax collector was fixed by the county court at $10,000, but he seems to have had some difficulty in obtaining sureties thereon, and at the meeting of the county court in September, he had been able to obtain only the signatures of the defendants to this action, each of whom had attempted to limit his liability by writing or causing to be written before his name the amount for which he intended to become liable, and which amounted in the aggregate to only $7,000. Without signing the instrument himself and without the names of any of the sureties, except Brown, being entered therein, or the sureties Brown and Fleetwood qualifying, and without obtaining the signatures of sureties sufficient to complete the bond, the uncompleted instrument, a copy of which is set out in the former opinion, was, as the plaintiff alleges, delivered by Huntington to the county court, and received by it as and for his bond as tax collector.

The defendants requested the court to instruct the jury that "it was incumbent upon Baker county, owing to the irregularities appearing on the face of the instrument, to make all reasonable efforts to ascertain if there were conditions limiting the obligations of the sureties, and to ascertain whether or not the sureties thereon had consented to its delivery in the condition in which you find it. I instruct you that if you find that the instrument in question was handed to the county judge of Baker county in its present condition by Huntington, and that at said time the defendants had not consented to its use by said county as the tax collector's bond, that the receipt by said county of such instrument under those circumstances did not constitute a delivery, and such receipt does not render defendants liable thereon." The court refused to give the instruction as requested, but gave it as modified, by adding at the end of the first sentence the words "unless the defendants by the assent or understanding of Huntington imposed no restrictions as to its delivery," and also charged: If the bond "was signed by the defendants and delivered to Huntington *** without any agreement or understanding between the sureties and Huntington that it was not to be delivered to the county until other qualified persons had signed it ***...