Gibbs v. Johnson

• Citation: 63 Mich. 671,30 N.W. 343
• Court: Supreme Court of Michigan
• Decision Date: 17 November 1886
• Parties: GIBBS v. JOHNSON and others.

30 N.W. 343

63 Mich. 671

GIBBS v. JOHNSON and others.

Supreme Court of Michigan

November 17, 1886

Error to Delta.

A.R Northrup and Ball & Hanscom, for plaintiff.

F.D Mead and F.O. Clark, for defendants and appellants.

MORSE J.

The plaintiff commenced an attachment suit in Delta county against the defendant Johnson, who was a non-resident of this state. The writ was executed by the seizure of a vessel belonging to him. The bond sued upon in this suit was given by Johnson as principal, and the other defendants as sureties, to release the vessel from the possession of the officer seizing it under such writ. The defendant Royce filed an affidavit with his plea, denying under oath the execution of the bond upon his part, but upon the trial it was admitted that all the defendants signed the bond.

The defense to the bond was, first, that the defendant Burns was not a freeholder as required by the statute; and that the defendant Royce signed the bond upon the express condition and statement that John K. Stack, who was a freeholder and large property owner in Delta county, would sign the same as his co-surety; and that, when Royce signed the bond, the place for the names of the sureties in the body of the instrument was, as he supposed, filled with the name of himself and the said John K. Stack.

The evidence showed that at the same time Royce signed this bond he also signed another one in an attachment case brought by Hessell and Mayotte against Johnson, and for the release of the same vessel from seizure in their suit. The bond in the case of Hessell and Mayotte did contain the name of Stack, written in the body of the same as surety, but the bond in this case did not contain the name of any surety; the spaces therefor being blank at the time of the execution of the bonds by Royce. Royce claims that the Hessell-Mayotte bond was on the top of the other bond, and supposing both to be filled in alike, he signed them both without looking at the body of the instrument in suit.

It appears from the testimony that Mr. Northrup, who was the attorney of both Gibbs and Hessell and Mayotte, had some talk with Johnson as to whom he would accept for bondsmen in the two cases, several names being mentioned as acceptable. Johnson saw Stack, who partly agreed to go upon the bonds. He then went to Royce, and told him that if he would sign the bond there would not be any question about Stack's signing it. Royce said: "Well, you go and get Stack's name on, and I will sign the bond;" and then signed it. Johnson then took the bond to Stack, who declined to sign it. He then went to the sheriff, and told him he could not get Stack. The sheriff and Northrup finally consented to take the defendant Burns, and Johnson obtained his signature. Royce was not consulted or seen further about the matter. The vessel was released the same day. Upon the trial the court below would not allow the defense that Burns was not a freeholder as affecting his liability, or that of Royce, and we think he was right in so ruling.

The only question submitted to the jury by the circuit judge was the question whether Northrup, the attorney of plaintiff, had knowledge of the fact that defendant Royce signed the bond upon condition that Stack should also sign as his co-surety. He instructed them as follows: "Now, Mr. Royce claims that notice was given to Northrup, the attorney for Gibbs, of the condition under which he signed this bond. That is the only question that you have to determine and pass upon in this case. If you find from the evidence in this case that Covell C. Royce did attach that condition to this bond, that he would sign it upon condition that John K. Stack would sign it, and if Johnson notified Northrup of that fact, and still Mr. Burns' name was taken in place of Stack's, without the consent of Royce,--if that be so, then Royce has a defense to this action; otherwise not. The burden of proof is upon the defendants. By proving the execution of this bond, and introducing it in evidence, and proving the record of the judgment, the plaintiff has made out his case." The jury found this issue in favor of the plaintiff, and rendered a verdict assessing the damages at $1,652.93.

It is not clear from the record that Royce made the delivery of this bond dependent upon the fact of Stack signing it as a co-surety....