Brown v. Perkins

• Decision Date: 20 January 1880
• Court: Michigan Supreme Court
• Parties: JOHN F. BROWN v. CYRUS E. PERKINS.

4 N.W. 195

42 Mich. 501

JOHN F. BROWN v. CYRUS E. PERKINS.

Supreme Court of Michigan

January 20, 1880

A guardian's bond signed by the principal, but with a blank for sureties, was signed by one B. as surety, and by him delivered to the principal on the agreement that another person should be procured as co-surety. The co-surety was not obtained, and on the bond being presented to the judge of probate he inserted the name of B. in the body of the bond changed "sureties" to "surety," and approved the same. Held, in an action on such bond by the successor of such guardian for assets not delivered, that B was liable as surety thereon.

Error to Kent.

Champlin & More, for plaintiff in error.

Hughes, O'Brien & Smiley, for defendant in error.

CAMPBELL J.

Suit was brought and recovery had below upon a guardian's bond made by Samuel B. Douglass as principal, and John F. Brown as surety, to Benjamin F. Harlan, judge of probate of Kent county, to secure the performance of Douglass' duties as guardian of four minor heirs of Allen B. McGuervan, deceased. The bond was in the sum of $10,000, was dated February 1 1872, and was joint and several. The guardian settled with such of his wards as came of age, but after resigning his trust, as to the others, it was claimed he did not pay and deliver the assets remaining in his hands to his successor and the jury rendered a verdict against Douglass and Brown, on the bond, for the alleged deficiency of $4,387.28. Brown, the surety, brings error, and rests his objections on the rejection by the court below of evidence tending to show that the bond was not his act and deed.

The facts on which this defense is based were these: The bond was drawn up on a printed form, and filled in with all but the names of the obligors. It purported as drawn to bind the guardian as principal, and the word "sureties" was partly written and partly printed, with a blank for their names not filled in. Brown signed the bond, while no name was inserted as surety, and he offered to show that when he had signed it he gave it to Douglass, the principal, with an agreement that Douglass should procure the signature of Lewis Withey as another surety, and that the bond should not be used without Withey's signature; that Douglass did not obtain Withey's signature, but took the bond to the judge of probate, who wrote in Brown's name, and changed the word "sureties" to "surety," and subsequently made an order of approval.

The circuit court of Kent county, where the cause was tried, ruled out this defence as legally insufficient. The case before us is claimed to differ from any other case which he we have yet passed upon. Three cases have been decided by this court bearing upon the general doctrine. In Johnston & Vincent v. Township of Kimball, 39 Mich. 187 (June term, 1878,) a township treasurer's bond, in which the treasurer was named as principal, but which he never signed, was held invalid as against the sureties in the absence of any agreement that they would be bound without him. In Hall v. Parker, 37 Mich. 590, the same ruling had been made on an appeal bond. In McCormick v. Bay City, 23 Mich. 457, it was held no defence that the names of additional sureties were not procured when it was agreed by the principal that he would not use the bond without obtaining them--the bond in that case, when signed by McCormick, not having the penalty or the names of the obligors filled in, and the officer receiving the bond having no notice of such an agreement. In Dair v. United States, 16 Wall. 1, a very similar case was decided in the same way.

In the present case, while no names were inserted in the bond when presented to the judge of probate, it contained the word "sureties," which plaintiff in error insists fairly informed him that any surety signing must have expected to have one or more...