City of Orlando v. Gooding

• Court: Florida Supreme Court
• Writing for the Court: TAYLOR, J.
• Citation: City of Orlando v. Gooding, 34 Fla. 244, 15 So. 770 (Fla. 1894)
• Decision Date: 16 July 1894
• Parties: CITY OF ORLANDO v. GOODING et al.

15 So. 770

34 Fla. 244

CITY OF ORLANDO v. GOODING et al.

Florida Supreme Court

July 16, 1894

Appeal from circuit court, Orange county; John D. Broome, Judge.

Action by the city of Orlando, by F. S. Chapman as its mayor against Charles T. Gooding and others. Plaintiff entered a nonsuit, and appeals. Affirmed.

Syllabus by the Court

SYLLABUS

1. A suit upon a bond, made payable to the mayor of an incorporated city or town and his successors in office, to secure the faithful performance of the duties of its clerk and treasurer, should be brought in the name of the mayor for the use of such city or town.

2. When an instrument is offered in evidence that is assailed as having been materially and unauthorizedly altered after execution by interlineation or otherwise, if the alteration is in itself suspicious,--as if it appears to be contrary to the probable meaning of the instrument as it stood before the insertion of the alteration, or if it is in a handwriting different from the body of the instrument, or appears to have been written with different ink,--in all such cases, if the court considers the alteration suspicious on its face, the presumption will be that it was an unauthorized alteration after execution, and the onus would rest with the party offering the instrument to explain it. On the other hand, if the alteration appears in the same handwriting with the original instrument, and bears no evidence on its face of having been made subsequent to its execution, and especially if it only makes clear what was the evident intention of the parties, the law will presume that it was made in good faith and before execution; and in the latter cases the onus would be cast upon the party alleging an unauthorized alteration to show that it was unauthorized in fact.

3. Where a bond or other obligation with sureties is unauthorizedly altered after execution by a stranger to such instrument, without the knowledge, sanction, connivance, or procurement of the payee, such alteration, as between the payee and sureties, will not avoid the instrument and release the sureties, but it remains in full force as it stood in its original form prior to its alteration.

4. In order to render a bond or other instrument admissible in evidence to sustain a suit thereon, that has been materially and unauthorizedly altered after execution, under circumstances that do not avoid its obligatory force and effect in its original unaltered form, the declaration must be so framed as to seek recovery thereon in its original unaltered form.

5. The administrator of a deceased obligor cannot be jointly sued in the same action with surviving obligors. The form of the judgment against the one is de bonis testatoris, and against the others de bonis propriis,--two forms of judgment that the law courts cannot blend into one.

COUNSEL

J. M. Cheney, for appellant.

Hammond & Jackson, for appellees.

OPINION

TAYLOR J.

The city of Orlando, by F. S. Chapman, as its mayor, sued Charles T. Gooding, as principal, James J. Patrick, Nathaniel C. Motley, and Mary Sweetapple, as administratrix of the estate of Henry Sweetapple, deceased, as sureties, in the circuit court of Orange county, for an alleged defalcation of $843.50 by Gooding, upon a bond given by Gooding, as principal, to E. J. Reel, as mayor of the city of Orlando, and his successors in office, to secure the faithful performance by Gooding of his duties as clerk and treasurer of said city, and the faithful application of all funds of said city that might come to his hands as such clerk and treasurer. The declaration contains but one count, and seeks to recover upon the following bond, attached thereto as the cause of action:

'State of Florida, County of Orange--ss. Know all men by these presents that we, Charles TO. Gooding, as principal, and J. J. Patrick and H. Sweetapple and N. C. Motley, as sureties, are held and firmly bound unto E. J. Reel, mayor of the city of Orlando, and his successors in office, in the sum of three thousand dollars, as follows: The said Charles T. Gooding, as principal, in the sum of three thousand dollars, the said J. J. atrick, as surety, in the sum of one thousand dollars, the said H. Sweetapple, as surety, in the sum of one thousand dollars, and the said N. C. Motley, as surety, in the sum of one thousand dollars, for the payment whereof well and truly to be made we hereby bind ourselves, 'jointly and severally,' our heirs, executors, and administrators, firmly by these presents. Signed and sealed the 10th day of November, A. D. 1886. The condition of the above obligation is such that, whereas, the above-bounden Charles T. Gooding has been elected as clerk and ex officio treasurer of the city of Orlando, and is about to enter upon the duties of said office, now, if the said Charles T. Gooding shall well and truly perform all the duties devolving upon him as such clerk and treasurer of the city of Orlando, and shall faithfully account for all moneys which shall pass into his hands by reason of said office, as required by ordinances of the said city of Orlando or by resolution of the city council, and shall deliver to his successor in office all books, moneys, and other property which may belong to said city of Orlando, and which may be in his hands at the expiration of his term of office, then this obligation to be void; else to remain in full force and effect. C. T. Gooding. [Seal.] J. J. Patrick. [Seal.] H. Sweetapple. [Seal.] N. C. Motley. [Seal.] Signed and sealed in presence of A. W. Acree, M. Silver, as to J. J. Patrick. S. P. Gooding, M. Silver, as to H. Sweetapple. E. M. Shepard, M. Silver, as to N. C. Motley.'

The declaration sought to recover upon the bond in the form in which it is presented above, without any allegation or explanation as to changes, alterations, or additions thereto that were made after its execution.

The defendants Patrick and Motley plead to this declaration as follows: (1) Non est factum. (2) That after the execution and delivery of said bond by them as sureties, and before the same was accepted by the plaintiff, said bond was materially altered, without their knowledge, consent, or privity, by interlining and inserting the words 'jointly and severally,' in the covenant thereof, as now set out in the bond which is attached to the declaration herein; and that said alteration was made by the defendant Gooding, or by his procurement or direction, with the knowledge and by the authority, consent, or direction of the plaintiff. (3) That the plaintiff, by its ordinance, duly adopted and approved, without the privity or consent of these defendants, extended the term of office of the principal in said bond, the defendant Charles T. Gooding, as its clerk and treasurer, and provided that he should hold his said office until December, 1887, instead of one year from July 31, 1886, the term for which he had been elected, and thereby extended the time in which he was required to render his final account and settlement as such clerk and treasurer, and enlarged, varied, and extended the liability and obligation of these defendants as surreties. (4) That the plaintiff at the time of the commencement of this suit was, and still is, indebted to the defendant Gooding in the sum of $400, for fees due him as clerk from the plaintiff in mayor's court of said city for recording the records, proceedings, and ordinances of said city and its council from the 31st of July, 1885, to the 11th day of August, A. D. 1887, which should be allowed by the plaintiff in an accounting between it and said Gooding. That Gooding is insolvent, and, as a reduction of the amount of their liability, they claim that said setoff should be allowed.

The defendant Mary Sweetapple, as administratrix of Henry Sweetapple, deceased, pleaded: (1) That the bond sued upon was not the deed of her intestate; (2) the same alteration in the bond pleaded by the other two sureties above; (3) the extension by ordinance of the term of office of Gooding, as pleaded by the other two sureties.

These pleas were demurred to by the plaintiff upon various grounds. The demurrer was overruled, and such ruling is assigned as error, but this assignment is not urged or insisted upon here, and we treat it as abandoned.

The principal defendant, Gooding, pleaded a set-off of $601.50, alleged to be due him from the plaintiff city upon an account for work, labor, and services performed by him for the plaintiff city as clerk, and for fees to which he was entitled. This plea was demurred to by the plaintiff, and the demurrer was overruled, and such ruling is also assigned as error, but is not insisted upon or urged as such here, and we treat it, too, as abandoned. Thereupon issue was joined on all the pleas filed by the defendants. The parties proceeded to trial before a jury.

The plaintiff offered in evidence the original of the bond sued upon, that showed upon its face that the words 'jointly and severally' had been interlined therein. Its introduction was objected to by the defendants upon the ground that it showed upon its face that it had been interlined, and that it became, therefore, the duty of the plaintiff to prove that such interlineation was done either before its execution, or, if done afterwards, that it was by and with the knowledge, sanction, and consent of the defendants. The court sustained the objection, to which plaintiff excepted. The plaintiff then introduced an expert in handwritings, who, after examining the bond, testified that the interlined words 'jointly and severally' therein were in the same handwriting, and apparently written with the same ink, as were the names of the parties written in the body of the bond, and of the several amounts that the sureties bound themselves for, and...