Bunn v. Jetmore

• Decision Date: 31 October 1879
• Citation: 70 Mo. 228
• Parties: BUNN, Appellant, v. JETMORE.
• Court: Missouri Supreme Court

70 Mo. 228

BUNN, Appellant,

v.JETMORE.

Supreme Court of Missouri.

October Term, 1879.

Appeal from Johnson Circuit Court.--HON. F. P. WRIGHT, Judge.

AFFIRMED.

John J. Cockrell for appellant.

When Hazleton delivered the written instrument to the township board, in the body of which was written, “We, Perry R. Hazleton, principal, &c., sureties, jointly and severally agree to pay,” &c., and commenced to perform the duties of constable, this was a sufficient signing of the instrument without it being subscribed by him. 3 Parsons on Contr., (5 Ed.) 5, 8; Bishop on Contr., p. 58, § 167; Coddington v. Goddard, 16 Gray 436, 444.

Elliott & Jetmore for respondent.

The principal never having executed the bond, it is void and imposes no obligation on the sureties. As the principal never signed or executed the bond, he is not bound, and if the principal is not bound, the sureties are not. Bean v. Parker, 17 Mass. 591; Ward v. Washburn, 2 Pick. 24; Russell v. Annable, 12 Am. Rep. 665; s. c., 109 Mass. 72; 2 Pothier Obligations, 85. There can be no security without a principal. In this bond no principal is bound, and the instrument cannot operate. As a statutory bond, it has no obligee--should be executed to the trustee, and suit should be instituted in the name of the trustee, in a suit on a valid bond, to the use of the party injured

NORTON, J.

This is a proceeding to recover of defendant as security of Perry R. Hazleton, constable of Hazle Hill township, Johnson county, the sum of $50.15, money alleged to have been collected by said constable and not paid over to the party entitled to receive it. The suit is founded on the following instrument of writing, viz; “Whereas, the undersigned, Perry R. Hazleton, was, on the 13th day of September, 1874, duly appointed to the office of constable of Hazle Hill township, in the county of Johnson and State of Missouri, and has accepted and is about to enter upon the duties thereof. Now, therefore, know all men by these presents, that we, Perry R. Hazleton, an principal, and S. Jetmore, Wm. McMahan, J. N. Stockton and J. T. Hamm, as securities, jointly and severally agree to pay each and every person who may be entitled thereto all such sums of money as the said constable may become liable to pay on account of any execution which shall be delivered to him for collection by virtue of his office, and all such damages as each and every person may sustain by reason of any malfeasance, misfeasance or non-performance on the part of said constable.

S. JETMORE,

W. MCMAHAN,

J. N. STOCKTON,

J. T. HAMM.”

Approved this 19th day of September, 1874.

JOHN L. TRAPP, Chairman Board.

E. A. WILLIAMS,

WM. P. GREENLEE.

The 6th section, article 5, of the township organization act, which act, at the time the above instrument was executed, was in force in Johnson county, provides that every person chosen or appointed to the office of constable before he enters upon the duties of his office * * shall execute, with two or more securities, an instrument in writing to the township trustee, to be approved by the township board of directors, in which said constable and his securities shall jointly and severally agree to pay to each and every person all such sums of money as said constable may become liable to pay on...