Clarke v. Williams

• Decision Date: 01 May 1895
• Parties: CLARKE v. WILLIAMS ET AL.
• Court: Minnesota Supreme Court

61 Minn. 12

62 N.W. 1125

CLARKE

v.WILLIAMS ET AL.

Supreme Court of Minnesota.

May 1, 1895.

(Syllabus by the Court.)

1. When one or more persons sign a joint bond as guarantors or sureties, upon condition that certain other persons are to sign the same with them before the bond is delivered, and it is delivered without such condition being complied with, the bond cannot be enforced against the persons so signing as sureties, unless the obligee had no notice of the condition, or the sureties, after signing, waived the condition.

2. The delivery of a bond, to be effective, must be made with the intention of passing the title to it to the obligee, and such as would pass it beyond recall by the obligors.

3. It is competent to show that a bond was never completely executed, upon the ground that other persons besides those who signed it were to sign it, but did not do so.

Appeal from district court, Morrison county; L. L. Baxter, Judge.

Action by Nehemiah P. Clarke against M. M. Williams and others on a bond. Plaintiff had judgment, and from an order denying a new trial defendants appeal. Reversed.

Taylor, Calhoun & Rhodes and Lindbergh, Blanchard & Lindbergh, for appellants.

G. W. Stewart, for respondent.

BUCK, J.

The order of the court below denying the defendants' motion for a new trial must be reversed, upon the ground that the verdict is contrary to the uncontradicted evidence, and because of the erroneous rulings of the trial court. The law is too well settled to need any extended discussion that when one or more persons sign a joint bond as guarantors or sureties, upon condition that certain other persons are to sign the same with them, before the bond is delivered, and it is delivered without such condition being complied with, the bond cannot be enforced against the persons so signing as sureties, unless the obligee had no notice of the condition, or the sureties, after signing, waived the condition. Bank v. Luckow, 37 Minn. 542, 35 N. W. 434;Whitford v. Laidler, 94 N. Y. 145; Ware v. Allen, 128 U. S. 590, 9 Sup. Ct. 174;State v. Wallis (Ark.) 20 S. W. 811;Cutler v. Roberts, 7 Neb. 4;People v. Bostwick, 32 N. Y. 445;Fletcher v. Austin, 11 Vt. 449; Bank v. Evans, 15 N. J. Law, 155; State v. Pepper, 31 Ind. 76. And certainly it could not be enforced when there was no actual delivery, or where there had been an actual unlawful deliverey; that is, where there had been an actual delivery, without the knowledge or consent of the signers of the bond, and the obligee knew...