Birmingham News Co. v. Moseley

• Decision Date: 17 March 1932
• Docket Number: 8 Div. 382.
• Citation: 225 Ala. 45,141 So. 689
• Parties: BIRMINGHAM NEWS CO. v. MOSELEY ET AL.
• Court: Alabama Supreme Court

141 So. 689

225 Ala. 45

BIRMINGHAM NEWS CO. v. MOSELEY ET AL.

8 Div. 382.

Supreme Court of Alabama

March 17, 1932

Rehearing Denied May 26, 1932.

Appeal from Circuit Court, Morgan County; W. W. Callahan, Judge.

Action on bond by the Birmingham News Company against William Moseley and J. H. Pride. From a judgment for defendants plaintiff appeals. Transferred from Court of Appeals.

Reversed and remanded.

In action on private bond, charge assuming that bond was one of absolute guaranty held properly refused.

Plea 2 is as follows: "2. For further and additional plea, the defendants herein, Moseley and Pride, separately and severally say That he signed his name to the contract or bond sued on of date, July 31, 1928, with a distinct agreement between him and the defendant, J. W. Bailey, who was the principal obligor, that the said bond or contract should not be delivered to the plaintiff until signed by the said J. W Bailey, and this defendant says, that the said J. W. Bailey, delivered said bond or contract without signing the same, and without becoming a party thereto; wherefore, this defendant says, that he is not bound thereby."

The following are replications 2, 3, and 4 to plea 2:

"2. For special replication plaintiff says that defendants and each of defendants executed said bond in the presence of E. M. Mitcham an agent or servant of plaintiff who was present when said bond was executed and who acted for plaintiff in the premises in making said contract with Bailey set forth in counts 1 as amended and count A as amended of the complaint and said defendants told plaintiff's said agent or servant that they had signed said bond and they were behind said bond and responsible on said bond to plaintiff.

"3. For special replication plaintiff says that after executing said bond and with knowledge of all the facts in reference to the indebtedness of J. W. Bailey under said contract which is the consideration of said bond and the non-payment of said indebtedness by said J. W. Bailey to plaintiff, defendants promised to pay plaintiff the amount they are due plaintiff under said bond.

"4. For special replication plaintiff says that the plaintiff rendered monthly statements to the said J. W. Bailey for all papers sent by plaintiff to said J. W. Bailey from the time he entered upon the performance of said contract until the same was declared forfeited on to-wit, Sept. 21, 1929, and plaintiff avers that the said J. W. Bailey paid all amounts due thereon until the month of July, 1929, and plaintiff avers that in the contract entered into by and between plaintiff and Bailey and that by the terms thereof written notice of any errors shown on statements rendered to said Bailey, should be made to plaintiff within six days from the time said statements were received and plaintiff avers that the said Bailey wholly failed to make any claim of errors within 6 days from the time he received said statements, and that if there were any errors, and plaintiff says there were none, he waived said errors under the terms of said contract."

Charge 8, along with others refused to plaintiff, sought to have the jury instructed ' that a verdict must be returned in favor of plaintiff and against the defendants if it be found that plaintiff sold to Bailey the newspapers, the foundation of this suit, and thereafter rendered to Bailey statements of account to which he made no objection within a reasonable time.

Other refused charges in this group sought to predicate a verdict for plaintiff upon a finding that Bailey accepted and delivered to his customers and has not yet paid for said newspapers; or upon a finding that the bond in suit was executed by defendants that plaintiff, in reliance thereon, sold and delivered the papers to Bailey, and that Bailey has not paid for same.

R. DuPont Thompson and Walter S. Smith, both of Birmingham, for appellant.

O. Kyle and S. H. Lynne, both of Decatur, for appellees.

KNIGHT J.

Suit by the Birmingham News Company against William Moseley, J. H. Pride, and J. W. Bailey, instituted in the circuit court of Morgan county; and, from a judgment in favor of the defendants Moseley and Pride, the present appeal is prosecuted.

Plaintiff amended his complaint by striking out J. W. Bailey as a party defendant, and thereupon the defendants Moseley and Pride demurred to count 1 of the complaint as amended. This demurrer was sustained by the court, and the plaintiff further amended his complaint by adding thereto count A. To count A, the defendants also demurred, and the court sustained the demurrer. Count 1, as amended, and count A were further amended by the plaintiff, and to these two counts as last amended the defendants demurred, but their demurrer was overruled by the court.

The contract sued on, and which is set out at length in the complaint, shows that J. W. Bailey, who had been appointed appellant's agent, in the town of Decatur (Albany Station), was intended to be the principal obligor in the contract, and that the defendants Moseley and Pride were the sureties of said principal obligor. This fact appears in the body of the contract, and the fact that it was incomplete without the signature of said J. W. Bailey is apparent from the whole instrument. The demurrer aptly raises this question.

In the absence of any averment in the complaint showing that the sureties delivered the contract, in its incomplete state, intending to be bound thereby, without the signature of the principal obligor, is the obligation binding upon them as sureties?

In the case of City and County of Sacramento v. Dunlap, 14 Cal. 421, the court, speaking through Justice Field, said: "The liability of the sureties is conditional to that of the principal. They are bound if he is bound, and not otherwise. The very nature of the contract implies this. The fact that their signatures were placed to the instrument can make no difference in its effect. It purports on its face to be the bond of the three. Some one must have written his signature first, but it is to be presumed, upon the understanding, that the others named as obligors, would add theirs. Not having done so, it was incomplete and without binding obligation upon either."

In the case of Russell v. Annable, 109 Mass. 72, 12 Am. Rep. 665, it was held that "sureties on a bond are not holden, if the instrument is not executed by the person whose name is stated as the principal therein. It should be executed by all the intended parties. Bean v. Parker, 17 Mass. 591; Wood v. Washburn, 2 Pick. 24."

In the following cases it is held 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 invalid as to the sureties. Bunn v. Jetmore, 70 Mo. 228, 35 Am. Rep. 425; City and County of Sacramento v. Dunlap, 14 Cal. 421; Johnston v. Kimball Township, 39 Mich. 187, 33 Am. Rep. 372; Wood v. Washburn, supra; Russell v. Annable, 109 Mass. 72, 12 Am. Rep. 665; Goodyear, etc., Co. v. Bacon, 151 Mass. 460, 24 N.E. 404, 8 L. R. A. 486; Green v. Kindy, 43 Mich. 279, 5 N.W. 297; Ferry v. Burchard, 21 Conn. 597; Curtis v. Moss, 2 Rob. (La.) 367; State v. Austin, 35 Minn. 51, 26 N.W. 906; Board of Ed. v. Sweeney, 1 S. D. 642, 48 N.W. 302, 36 Am. St. Rep. 767; Martin v. Hornsby, 55 Minn. 187, 56 N.W. 751, 43 Am. St. Rep. 487.

The case of Painter v. Mauldin, 119 Ala. 88, 24 So. 769, 72 Am. St. Rep. 902, throws much light upon the question now under consideration. In that case the question arose as to the liability of sureties on the bond of a guardian, against whom a judgment had been rendered. The sureties moved to quash the execution issued against them on the ground that, while they signed the bond of the guardian, the guardian himself, though named in the body of the bond, did not sign it, and that it was delivered without the consent of the sureties. The court held that, if the bond was not executed by the principal, as was admitted, it was not a statutory bond, and did not authorize the issuance of an execution against the sureties as provided by the statute. The court concluded: "We hold, however, that under the admitted facts, by virtue of section 2282 of the Code of 1896, the bond is good as a common-law liability, upon which the obligors may be sued in a court of law." Section 2282 referred to reads: "A surety on the bond of the general guardian of the county, or on the bond of the guardian of a minor, or person of unsound mind, cannot avoid liability thereon, on the ground that he signed or delivered it on condition that it should not be delivered to the judge of probate, or should not become perfect, unless it was executed by some other person who does not execute it."

Thus it would seem that but for section 2282 of the Code of 1896 (now Code 1923, § 8145) the bond would have been held void, and unenforceable.

The Painter Case, supra, again came under consideration of this court in the more recent case of Hannis Distilling Co. v Lanning et al., 191 Ala. 280, 68 So. 137, 139, and, in line with the holding in the Painter Case, it is held: "By force of the statute complainants are denied the right to avoid liability on the ground that they signed or delivered the bond on condition that it should not be delivered to the proper officer, or should not become perfect, unless it was executed by some other person who did not execute it; the bond being on its face a valid and perfect instrument. The manifest purpose and intention of the statute (section 1505 of the Code [of 1907]) is to take away from sureties who sign any bond within the scope and operation of the statute the defense that they executed and delivered the bond conditionally; and the statute is to be liberally construed. Bromberg v....