Clarke v. Williams
| Decision Date | 01 May 1895 |
| Docket Number | 9190--(40). [2] |
| Citation | 62 N.W. 1125,61 Minn. 12 |
| Parties | NEHEMIAH P. CLARKE v. M. M. WILLIAMS and Others |
| Court | Minnesota Supreme Court |
Action in the district court for Morrison county against M. M Williams and others to recover a balance due on a written instrument signed by defendants, by the terms of which, in consideration of the agreement of William Sauntry to build a saw mill at Little Falls and to perform certain other things and in consideration of the mutual covenants and agreements of the signers to and with each other, the signers jointly and severally promised to pay to the order of Sauntry $ 15,000 on the completion of said mill before a certain day. The complaint alleged performance by Sauntry and an assignment of the obligation to plaintiff. The other facts are stated in the opinion. From an order, Baxter, J., denying a motion to set aside a verdict for $ 6056.11 in favor of plaintiff and for a new trial defendants appealed. Reversed.
Order reversed.
Taylor Calhoun & Rhodes and Lindbergh, Blanchard & Lindbergh for appellants.
George W. Stewart, for respondent.
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. Merchants' Ex. Bk. v. Luckow, 37 Minn. 542, 35 N.W. 434; Whitford v. Laidler, 94 N.Y. 145; Ware v. Allen, 128 U.S. 590, 32 L.Ed. 563, 9 S.Ct. 174, 9 S.Ct. 174; State v. Wallis, 57 Ark. 64 20 S.W. 811; Cutler v. Roberts, 7 Neb. 4; People v. Bostwick, 32 N.Y. 445; Fletcher v. Austin, 11 Vt. 447; State Bank v. Evans, 15 N.J.L. 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 delivery; that is, where there had been an actual delivery without the knowledge or consent of the signers of the bond, and the obligee knew that its conditions had not been complied with before the delivery. There is no question in this case as to whether Sauntry, the obligee, or Clarke, the assignee, had notice of the conditions upon which the bond or guaranty...
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