Greene County v. Wilhite

• Decision Date: 28 February 1888
• Parties: GREENE COUNTY to the use of D. M. SIMS et al., Respondent, v. W. W. WILHITE et al., Appellants.
• Court: Missouri Court of Appeals

29 Mo.App. 459

GREENE COUNTY to the use of D. M. SIMS et al., Respondent, v. W. W. WILHITE et al., Appellants.

Court of Appeals of Missouri, St. Louis.

February 28, 1888

APPEAL from the Greene Circuit Court, HON. O. H. TRAVERS, Special Judge.

Affirmed.

FRANCIS M. WOLF and THOS. W. KERSEY, for the appellants: The bond sued on was taken in excess of the amount prescribed by statute, and hence void. Laws of 1883, sec. 2, p. 87; United States v. Gordon & Shepperd, 1 Brock. 190. Statutory bonds must be strictly construed and strictly pursued. 3 Call. 421; 2 Chitty's Pleading, 478 Penlen v. Burson, 1 Lord Raymond, 349; Collins v. Blantern, 2 Wilson 347; Morange v. Boughton, 21 Wendell 57; Williams v Sheeley, 2 Ore. 144. The penalty in the bond sued on being greater than that prescribed by statute, imposes upon the obligor a greater burden than the law requires invalidating the bond. Commonwealth v. Laub, 1 Watts and Sergeant, 261. This bond being variant from the statute and demanded under color of office is bad. Farrar v. United States, 5 Peters 373. The bond in issue was altered by a stranger to the bond, after it was signed by the principals and sureties, and after it had passed from their hands. Murfree on Official Bonds, sec. 757, p. 757, note 1, and authorities therein cited. The court erred when it permitted any evidence to be introduced on the part of respondent, because the bond in issue was void; because the petition did not state facts sufficient to constitute a cause of action. The court erred in permitting the bond in question to be introduced, because said bond had been materially altered after its execution, and without the consent of the defendants. The court erred in declaring the bond a valid bond and refusing to let the jury pass upon the fact of the alteration. Holton v. Camp, 81 Mo. 661. The court erred in permitting oral evidence to be introduced to show that several of the principals in the bond, as well as several of the sureties, had supposed that the bond had been altered or would be altered. The court erred when it refused to allow appellants to prove that only one of the partners of W. W. Wilhite & Company had signed the bond in question.

HASELTINE BROTHERS and B. R. BREWER, for the respondent: The bond of the defendants is not excessive of the statutory requirements. Rev. Stat., sec. 5440, as amended by Laws 1873, p. 87; Rev. Stat., sec. 1601. The defendants have enjoyed the benefits and fruits of a statutory bond, and cannot now be heard to deny their amenability to their obligation. Rubleman v. Greve, 18 Mo.App. 6; Speak v. United States, 9 Cranch 28; United States v. Bradley, 10 Peters 343; 97 U.S. 413; Polk v. Plummer, 37 Am. Dec. 566; Newton v. Cox, 76 Mo. 352; Commonwealth v. Way, 3 Ohio 103. There was no alteration of the bond, but simply the filling of some of the blanks in the conditions which were intended to be filled in no other or different way from that in which they were filled. Field v. Stag, 52 Mo. 534; Murfree on Official Bonds, sec. 42, p. 168; Treasurer v. Douglass, 77 Mo. 647; Ex parte Kerwin, 8 Cowan 118. The bond is a valid bond and it was properly admitted in evidence. Graves v. McHugh, 58 Mo. 499. The petition states a cause of action. Rev. Stat., secs. 3550, 3527; Reynolds v. Railroad, 85 Mo. 90; Edwards v. Brown, 67 Mo. 377. The points attempted to be made by defendants on the sufficiency of plaintiffs' pleading are frivolous. State ex rel. v. Williams, 77 Mo. 463; State ex rel. v. Rush, 77 Mo. 586. Nor is the objection in regard to time well taken. Edwards v. Burns, 67 Mo. 377; State v. Small, 31 Mo. 197; State v. Findley, 77 Mo. 338; Boyce v. Chrysty, 47 Mo. 70. The bond was properly construed, held to be valid by the court, and the court properly so instructed the jury. The partnership name, signed to the bond by one of the partners for the purpose of entering into the dram-shop business, bound all members of the firm. Gwinn v. Rooker, 26 Mo. 290; Murfree on Official Bonds, sec. 159. The members of the firm were admitted on the pleadings. Laws of 1883, p. 121. The execution of the bond was admitted on the pleadings, by failure to deny the same on oath. Rev. Stat., sec. 3653. The evidence and instructions offered by defendants in regard to the " " " " instructions" and " intent" of the dram-shop keepers to their agents and bar tenders were properly refused, as this is a civil case. Rev. Stat., sec. 5455; Edwards v. Brown, 67 Mo. 377; Garretzen v. Duenckle, 50 Mo. 104; Krieter v. Nichols, 28 Mich. 496; Carroll v. State, 3 A. 29; Commonwealth v. Kelley, 1 New Eng. Rep. 384; Lack v. Stephens, 35 Am. Dec. 382; 7 C. L. J. 178; 31 Am. Rep. (Iowa) 363; Peter v. Noble, 35 Wis. 80; State v. Griffith, 67 Mo. 287; 3 Greenl. on Evid., sec. 21; 79 Ill. 133; 29 Conn. 479; 8 Hun 128. Each drink is a separate and distinct cause of action. State v. Small, 31 Mo. 197. And each act of selling is a distinct cause of action. State v. Andrews, 27 Mo. 268. The question of intent and instructions of a principal to his agents, servants, and employes in a criminal case or quasi -criminal case has some foundation in Missouri, but has none in civil cases like this. Edwards v. Brown, 67 Mo. 377; Rev. Stat., sec. 5455; State v. Probasco, 17 N.W. 607. The court had the power and it was its duty to make its records speak the truth after the appeal now taken. DeKalb v. Hixon, 44 Mo. 341; Bank v. Allen, 68 Mo. 474.

OPINION

ROMBAUER J.

This is an action upon an instrument purporting to be a dram-shop bond, given under the provisions of section 5440, Revised Statutes, as amended by act, approved March 24, 1883. Laws 1883, p. 87. The three defendants first named are sued as principals, and the three defendants last named as their sureties.

The petition contains twenty-two counts. The first thirteen charge the defendant principals with as many different breaches of the bond in December, 1885, and January, 1886, in this, that they sold, or caused or suffered to be sold or given, on their premises, to the relators' minor son, and without the relators' consent in writing, intoxicating liquors. Each of the counts seeks a recovery of the sum of fifty dollars under the provisions of the act approved March 31, 1885. Laws 1885, p. 160. The last nine counts seek a recovery for other breaches of the bond, but as these counts were withdrawn from the jury their consideration is immaterial.

Upon a trial of the cause before a special judge and jury, there was a verdict for the relators on the first eight counts. The court thereupon rendered judgment for two thousand dollars, the penalty of the bond as limited by statute, with an award of execution for four hundred dollars in favor of relators.

The defendants appealing assign nineteen errors. Most of these are repetitions of the same exceptions, in various forms, and we shall notice such only as admit of a reasonable contention.

The first is, that the penalty of the bond is in excess of the amount provided for in the statute, and the bond is, therefore, void, and incapable of enforcement; that the law provides for a bond in the penal sum of two thousand dollars, while the bond sued on is in the penal sum of twenty-five hundred dollars.

The law under which the present prosecution was had provides for a bond in the penal sum of two thousand dollars only, but the statute, to guard against the sale of adulterated liquors (Rev. Stat., sec. 1601) provides for a bond in the penal sum of five hundred dollars, containing additional conditions. It is unquestionably the more regular method to take from the dram-shop keeper two separate bonds, with the penalties and conditions fixed by the statute, respectively, which, in case of breach of conditions, will avoid all complications. But as the defendant principals in this case were legally bound to give bonds in the penalty of twenty-five hundred dollars before they could obtain a license, we cannot well perceive how either they or their sureties can complain, because they are required to execute one bond only instead of two, provided the penalty was not in excess of the aggregate penalties required by law.

It has been the tendency of the decisions in this state to uphold bonds as statutory bonds even when they departed from the terms of the statute, provided, no substantial rights of the obligors were violated and no burden imposed upon them in excess of the obligation required by law. Grant v. Brotherton, 7 Mo. 458; Flint v. Young, 70 Mo. 225; Newton v. Cox, 76 Mo. 353; Rubelman v. Greve, 18 Mo.App. 9, and cases cited. This exception, therefore, is not well taken.

The next exception is, that the bond had been altered after its execution by the defendants, and was thus avoided. The record recites that the defendant sureties filed a plea of non est factum. The jurat to the plea shows no date, and was, subsequent to the filing of the bill of exceptions, stricken out by the court on the ground that it was not annexed to the plea when originally filed. Of this action of the court the defendants complain as irregular and unwarranted by the rules of practice in the trial court. It is needless to decide what...