Goodyear Dental Vulcanite Co. v. Bacon

• Decision Date: 10 May 1890
• Citation: 24 N.E. 404,151 Mass. 460
• Parties: GOODYEAR DENTAL VULCANITE CO. v. BACON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

151 Mass. 460

24 N.E. 404

GOODYEAR DENTAL VULCANITE CO. v. BACON.

Supreme Judicial Court of Massachusetts, Suffolk.

May 10, 1890

May 10 1890

HEADNOTES

COUNSEL

Blackmar & Sheldon, for plaintiff.

J.R Bullard, for defendant.

OPINION

DEVENS J.

The instrument in suit purports to be the bond of Caduc as principal, and of the defendant and others as sureties, in different sums, respectively, for the faithful performance by Caduc of his duties as treasurer of the plaintiff company. It was held at a former hearing that a demurrer to the declaration thereon, based upon the reason that it did not appear thereby that the principal had ever signed the bond upon which it was sought to hold the defendant as surety, could not be sustained. Vulcanite Co. v. Bacon, 148 Mass. 542, 20 N.E. 175. "If the defendant," it was said, "knowing that Caduc had not signed it as principal, but intending, nevertheless, to be himself bound as surety, executed the bond, and delivered it as it is, *** he may be held liable upon it. Caduc was liable without a bond." At the subsequent trial the defendant testified, without contradiction, that "he had not consented to the principal not signing, nor to the delivery without such signature; that he signed at the request of the proposed principal and relied on his signing; that nothing was saip on the subject." He also added, the plaintiff objecting, "that he did not understand he was to be bound unless the principal signed." Upon this evidence the plaintiff asked the court to rule that it was entitled to judgment; but the court held that upon this evidence it was not bound to find for the plaintiff, and found for the defendant.

When the so-called bond was delivered to the plaintiff, it was in an imperfect condition. While purporting to be signed by the principal, it was not so signed, and, while purporting to be under seal, no seals had been affixed. The plaintiff had possession of and produced the instrument which is evidence of a delivery to it, but not necessarily of any delivery by the defendant, who, without contradiction, denied any delivery by himself, or any authority from him to deliver the same in its then condition. Even if the testimony, as the plaintiff contends, shows simply that the defendant signed the bond, and left it with the principal, "without imposing any restriction upon its delivery, or making any condition that it should not be delivered until signed by the...