Gasconade Cnty. ex rel. Sch. Twp. No. 44, Range 4, West v. Sanders

• Decision Date: 31 January 1872
• Citation: 49 Mo. 192
• Parties: GASCONADE COUNTY, TO USE OF SCHOOL TOWNSHIP NO. 44, RANGE 4, WEST, Respondent, v. HENRY SANDERS, IMPLEADED WITH WILLIAM A. MILLER, Appellants.
• Court: Missouri Supreme Court

49 Mo. 192

GASCONADE COUNTY, TO USE OF SCHOOL TOWNSHIP NO. 44, RANGE 4, WEST, Respondent,

v.HENRY SANDERS, IMPLEADED WITH WILLIAM A. MILLER, Appellants.

Supreme Court of Missouri.

January Term, 1872.

PER CURIAM.

Appeal from Cole Circuit Court.

H. Flanagan, for appellants.

Where a surety is induced to sign a bond by fraudulent representations that the signature of a co-surety is genuine, he is released. (Pepper v. The State, 22 Ind. 399; The People v. Bostwick, 43 Barb., N. Y., 9; United States v. Lifter, 11 Pet. 86; Pawling v. The United States, 4 Cranch, 219; Johnson et al. v. Baker, 6 Eng. Com Law, 479; Leaf et al. v. Gibbs, 4 Carr. & P. 464.)Lay & Belch, for respondent.

No fraud on the part of a member of the County Court could be set up to impeach the contract entered into with the court. The powers or duties of the court cannot be delegated to one of its members to transact business out of court. In no sense could Collier be the agent of the County Court. The action of the court is known by its record, and no declaration of Collier outside of court can be set up to affect the action of the court or its records. (8 Mo. 235; 12 Mo. 598.) Collier, if agent for any one, was agent for Sanders. He suggested the name of the surety to get, directed him to get the surety to sign, was satisfied with his act, and delivered it unconditionally. Sanders was first in the wrong, and must suffer.

ADAMS, Judge, delivered the opinion of the court.

Gasconade county sued the defendants on a bond executed for the payment of school funds loaned them.

The defendant Sanders, by his separate answer, sets up as a defense, “that about the date mentioned in the petition, one Preston H. Collier was one of the justices of the County Court of Gasconade county, and agent of the county; that said Collier, on the date last mentioned, falsely representing to said Sanders that said Miller desired to borrow from plaintiff out of the school funds of said township about the sum of three hundred dollars, requested the defendant to sign said Miller's obligation as security; that this defendant refused to sign it without the name of one Henry Benner as co-surety; that said Collier then and there agreed to get said Benner to sign said obligation as surety; and this defendant further says that on or about the same day the said Collier returned to this defendant with said obligation in blank, and with the name of said Benner signed thereto as surety, as falsely and fraudulently represented by said Collier, and then and there falsely and fraudulently representing to this defendant that Benner had signed his name to said obligation as surety, and then and there falsely and fraudulently represented to said Sanders that said obligation should only be filled for three hundred dollars, induced this defendant, relying upon the said representations of the said Collier, to sign said obligation as surety; and this defendant further says and charges that the said representations so made by said Collier were false and fraudulent, and made for the purpose of deceiving and defrauding this defendant; that said loan was not intended for said Miller, but for the benefit of said Collier, who received the same and applied it to his own use; that he could not himself procure said loan in his own name, he being at the time one of the justices of the County Court, but he falsely and fraudulently used said Miller to aid him in said fraud; and this defendant further says and charges that the name of said Benner to said obligation was not written by him nor by his authority, but that the same was falsely and fraudulently written and forged to said obligation by said Collier, for the purpose of deceiving and defrauding this defendant; that said Collier, after said obligation was signed by this defendant, falsely and fraudulently filled up the same for the sum of five hundred dollars, for the purpose of deceiving and defrauding this defendant; and this defendant further says that the obligation so forged and falsely and fraudulently filled up as aforesaid is the...