Howard Ins. Co. of New York v. Silverberg

• Decision Date: 02 May 1899
• Docket Number: 490.
• Citation: 94 F. 921
• Parties: HOWARD INS. CO. OF NEW YORK v. SILVERBERG et al.
• Court: U.S. Court of Appeals — Ninth Circuit

94 F. 921

HOWARD INS. CO. OF NEW YORK v. SILVERBERG et al.

No. 490.

United States Court of Appeals, Ninth Circuit.

May 2, 1899

This action was commenced in the circuit court of the Northern district of California to recover upon an undertaking on appeal which had been executed by the defendants in error on August 9, 1892, in a case then pending in the superior court of the city of New York, in which the Howard Insurance Company of New York was the plaintiff, and Julius Jacobs and George Easton were the defendants, and in which a judgment had been rendered for the plaintiff in the sum of $7,485.83. A condition of the undertaking on appeal was that the defendants in the action should pay all costs and damages which might be awarded upon the appeal, and that, if the judgment appealed from should be affirmed, they would pay the amount thereof. The appeal was taken to the general term of the superior court of the city of New York. On January 15 1894, the appellate court affirmed the judgment. 26 N.Y.Supp 1133. On December 13, 1894, Jacobs and Eastman appealed from the judgment of affirmance to the court of appeals of the state of New York, and in 1896 the latter court affirmed the judgment so appealed from. 45 N.E. 1132. On December 22 1897, the present action was brought against the sureties on the appeal bond.

The circumstances under which the undertaking was executed, as they are set forth in the complaint, are as follows: Jacobs and Easton, the defendants in the action in the superior court, desiring to appeal from the judgment of that court requested the plaintiff in the action to accept a bond on appeal, to be signed by Silverberg and Pease, who were residents of California, as sureties. The plaintiff acceded to the request, an undertaking was signed by Silverberg and Pease in San Francisco on August 9, 1892, and on the following day both sureties verified the undertaking before a commissioner for New York in San Francisco, before whom, on the same day, they also acknowledged the instrument. On September 10, 1892, the undertaking was filed in the superior court of the city of New York, together with a written stipulation between the parties to the action to the effect that the plaintiff would not except to the sureties on said undertaking and that such undertaking might be filed, and that no exception should be taken to its form, or to the time of its filing, or to the justification of its sureties, and that such undertaking should operate as a stay of proceedings. The parties were permitted to enter into such a stipulation under section 1305 of the Code of Civil Procedure of New York. A demurrer was interposed to the complaint, on the ground that the cause of action was barred by subdivision 1 of section 339 of the Code of Civil Procedure of California, which provides that an action on a contract, obligation, or liability founded on an instrument of writing out of the state must be commenced within two years after the cause of action has accrued. The circuit court sustained the demurrer, and a judgment was entered dismissing the action. 89 F. 168. This ruling is assigned as error.

Abraham C. Freeman, for plaintiff in error.

Edmund Tauszky, Lester H. Jacobs, and W. E. F. Deal, for defendants in error.

Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.

GILBERT Circuit Judge, after stating the facts as above, .

The controlling question presented in this case is whether the undertaking on appeal was executed without the state of California. No instrument is executed until it is delivered. To constitute a delivery, the obligor must do some act which places the instrument beyond his control and beyond his power of revocation. Duer v. James, 42 Md. 492; Fisher v. Hall, 41 N.Y. 416; Younge v. Guilbeau, 3 Wall. 636. The delivery need not always be made to the obligee personally. It may be made to a third person in his behalf. Hatch v. Bates, 54 Me. 136; Cooper v. Jackson, 4 Wis. 538; Sneathen v. Sneathen, 104 Mo. 201, 16 S.W. 497. A bond on appeal is not delivered to the clerk of the court, who files it and holds it on behalf of the obligee for whose benefit it is given. Section 1307, Civ. Code N.Y., provides that an undertaking 'must be filed with the clerk with whom the judgment or order appealed from is entered. ' There can be no doubt that, as a general rule, the filing of an undertaking on appeal is its delivery. The proposition that the place of delivery of such an instrument will, in the absence of an agreement to the contrary, be deemed to be the place of its execution, irrespective of the place where it was signed, and that a contract is made in that state in which it first takes effect as a binding obligation is fully sustained by the authorities. In Bell v. Packard, 69 Me. 105, it was held that a promissory note written in Maine, but signed in Massachusetts, by citizens living there, and then returned by mail to the payee, living in Maine, is a note made in Maine, and to be construed by the laws thereof. The court said: 'For, although it was signed in Cambridge, it was delivered to the payee in Skowhegan, and it was not a completed contract until delivered. ' In Lawrence v. Bassett, 5 Allen, 140, the defendant had put his name on the back of a note in another state while it was in the hands of the original maker, and before it was delivered to the payee. It was subsequently passed to the payee in Massachusetts for a valuable consideration. The court held that it then for the first time became a valid promise to pay the money, and said: 'Until such delivery, it was not a binding and operative contract, upon which the defendant could have been held as a party to the note. It was therefore the delivery to the plaintiff which completed and consummated the contract. ' In Milliken v. Pratt, 125 Mass. 374, the court held that a contract of guaranty signed in Massachusetts and sent by mail to another state, and assented to and acted on there, for the price of goods sold there, is made in that state. The court said: 'If the contract is completed in another state, it makes no difference in principle whether the citizen of this state goes in person, or sends an agent, or writes a letter, across the boundary line between the two states. ' In Fort v. Leonard (Ala.) 22 South, 481, it was held that, although a bond may be signed at one time, its execution does not occur until its delivery. Said the court: 'The bond * * * speaks from the time of delivery,-- from its execution, and not from its signing. ' So, in Tilden v. Blair, 21 Wall. 241, it was said: 'It has been settled that the liability of an acceptor does not arise from merely writing his name on a bill, but that it commences with the subsequent delivery. ' In State v. Young, 23 Minn. 551, the court said: 'It is almost an elementary principle, laid down in all the books, that a bond is not 'executed' until it is delivered for delivery is of the essence of a deed.'

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