Commonwealth v. Olloman
| Decision Date | 25 August 1934 |
| Docket Number | 689 |
| Citation | 23 Pa. D. & C. 125 |
| Parties | Commonwealth use of v. Olloman et al |
| Court | Pennsylvania Commonwealth Court |
August term, 1931.
Motion for judgment for want of a sufficient affidavit of defense.
Lloyd O. Hart, for plaintiff.
David H. Weiner, for defendants.
By the amended statement of claim the plaintiff declares upon a bond given to the Commonwealth to secure faithful performance of the duties of a guardian appointed by the orphans' court. It is averred that B. Trilecz was appointed by the orphans' court of this county as guardian of the estate of Mary Badin, a minor; that said guardian filed a bond executed by the defendants as sureties, a copy thereof being annexed; that he received into his possession and control moneys constituting the minor's estate; that he became a bankrupt, and the orphans' court appointed the Citizens Trust Company, use plaintiff, as his successor in the guardianship, and decreed that he pay to said successor $ 500, the amount adjudged to be in his hands; and that he made default in such payment. The suit is brought to recover from the sureties the aforesaid sum of $ 500, with costs in the orphans' court amounting to $ 13, against which the plaintiff allows a credit for dividends paid by the guardian's bankrupt estate, aggregating $ 90.97, the balance claimed being $ 422.03, with interest from June 16, 1931, the date of the decree directing payment to be made to the successor.
The defendant Walter Olloman has filed an affidavit of defense denying that he executed the bond.
The defendant Domenic Colaizzo has filed an affidavit of defense, admitting execution of the bond by him as a surety, but averring that his signature was procured by means of a fraudulent representation, made to him by B. Trilecz, the guardian and principal in the bond, " that the said bond would also be executed by Walter Olloman as co-surety," and averring further, on information, that Walter Olloman did not execute the bond, the signature purporting to be that of Olloman upon the bond not being genuine.
The plaintiff moves for judgment against Colaizzo for want of a sufficient affidavit of defense, upon the ground that the alleged representation made by Trilecz presents no defense valid against the Commonwealth or the use-plaintiff.
In the case of McCaffrey v. Nenad et al., 10 Wash. Co. 109, this court said at page 110:
" It is well settled that when the principal in an obligation has, without the participation or knowledge of the obligee, and without any authority to represent him, practiced a fraud to induce another to sign as surety, the obligee is not affected by such fraud if, without knowledge of it, he gives value for the executed instrument: Johnston v. Patterson, 114 Pa. 398; Rothermal v. Hughes, 134 Pa. 510; Lane's App., 112 Pa. 499."
To the same effect are Kulp v. Brant, 162 Pa. 222, 226, and Donaldson v. Hartford Accident & Indemnity Co., 269 Pa. 456, 460. Here, Trilecz presented for approval a bond purporting and represented to be signed by Olloman as his surety, and actually signed as surety by Colaizzo; and on the faith of the undertaking, expressed in the bond, that these sureties would be responsible, the Commonwealth, through its agency the orphans' court, placed the control of the minor's estate in the hands of Trilecz as guardian, and it is not alleged to have been made known to the court that there had been any representation to Colaizzo that Olloman had agreed to, or would, become one of the sureties.
It is true, the copy of the bond shows that in the body thereof is written the name of Walter Olloman as one of the persons expected to execute it, and Colaizzo may be intending to claim, further, that it must be deemed that he signed on the basis, and upon the implied condition, that Olloman should sign also. For present purposes we must, of course, assume the fact to be that Olloman did not sign the bond.
In Sharp v. The United States, 4 Watts 21, a bond naming two persons as sureties was signed by only one of them, and it was held that the bond could not be enforced against him as sole surety, as it must be taken that his signing was done upon the understanding and condition that it should be executed by another surety. We have not found any case that follows Sharp v. The United States, and it was distinguished in Whitaker et al. v. Richards et al., 134 Pa. 191, upon the ground that the bond was given under an act of Congress, " which required that it should be executed by two or more sureties", and hence Sharp " had a right to suppose the bond would be executed in accordance with the act of congress" . On the other hand, the bond in the instant case, which was given under section 59 of the Fiduciaries Act of June 7, 1917, P. L. 447, was not " required" by that act to have two sureties. The language of the statute is: " The orphans' court... whenever they may deem it proper, may require a bond,... with two good and sufficient individual sureties, from every guardian of a minor" . That language was taken literally from the Act of March 29, 1832, P. L. 190; and, as it stood in the Act of 1832, it was interpreted by the Supreme Court as making the exaction of security from a guardian a matter of discretion for the court: The court could in its discretion require as much as two good and sufficient sureties, or it could require no security at all. From this it must follow that if, pursuing an intermediate course, the court should accept a bond with one surety it would not be disregarding any " requirement" contained in the statute. The principle for which Sharp v. The United States was recognized as an authority in Whitaker et al. v. Richards et al., does not apply. Colaizzo had no basis for assuming, and no right to assume, that the orphans' court would not accept a bond with one surety only. The question of his liability upon the bond now in suit must therefore be determined upon principles that are stated in subsequent reported cases. Those cases lay down the following rules:
1. A person signing a joint and several obligation, in the character of a surety, with the expectation that another will become co-surety with him, must, if he does not wish to be held as sole surety in case that other does not sign, stipulate that his execution thereof shall not become effective unless and until the other person executes the instrument: Whitaker et al. v. Richards et al., 134 Pa. 191; Simpson's Executor v. Bovard, 74 Pa. 351, 360.
2. He must also cause knowledge of the fact that he has signed subject to such a condition to be brought home to the obligee or payee, or the latter's agent, before a valuable consideration has been parted with on the faith of the instrument as executed by him: Whitaker v. Richards, supra; Keener v. Crago et al., 81* Pa. 166 (see defendant's points and answers...
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