Keyser v. Keen
| Decision Date | 02 February 1852 |
| Citation | 17 Pa. 327 |
| Parties | Keyser <I>versus</I> Keen. |
| Court | Pennsylvania Supreme Court |
W. B. Reed, for Keyser, plaintiff in error.—If Keyser had expressly stipulated that all six should sign, and one did not, he would be discharged: 4 Cranch 219, Pauling v. U. S.; 3 Barr 318, Fertig v. Bucher; 3 Greenl. 155, State Bank v. Weeks; Sharp v. U. S., 4 Watts 23. When Keyser signed the bond, he saw from it who were to be his co-obligors. He signed it in that faith, and left it in the hands of a third party. The bond was joint and several, and he, in the event of being compelled to pay it, would have been entitled to contribution.
It was recited in the bond that Keyser and others, including Culp, had agreed with Keen to sign the bond. This Culp denied. If there was such an agreement, then the bond, by the refusal of Culp, was altered, unless his execution was agreed by the parties to be dispensed with; if there was no such agreement, and the fact was known to the obligee, the bond was void. The burden of proof that all parties agreed to a change in the bond was on the obligee: 14 Ser. & R., Barrington v. The Bank of Washington.
McMurtrie and Cadwallader were for defendant in error.—Defendant not having pleaded non est factum, but payment with leave, admitted the execution and delivery of the bond. He rested the case on matters extrinsic, and it lay on him to prove that the bond was not delivered. The general rule is that where one of several parties, named as sureties in a bond, execute it, the instrument is perfect as to him, unless at the delivery an express condition was made, that until the others signed it, it was not to be operative: 4 B. & Ald. 440, Johnson v. Barber; 2 Bos. & Pul. 338, Elliot v. Davis; 1 Harrison 453; 10 Mass. 442-5; 12 Id. 137.
Mere expectation that the person named as a surety was to sign, is not enough; there must be a positive stipulation that the instrument delivered is not to have effect till the other signs: 4 Shepley 140; 5 Greenleaf 336; 10 Ohio 445, 451; 2 Iredell, 338-342; 6 Alabama 248-254; 8 Watts 226, Mears v. Commonwealth.
The opinion of the court was delivered February 2, by LOWRIE, J.
This bond was prepared for six obligors, and is executed by only five of them; yet we cannot, therefore, infer that it is incomplete and not binding on those who did execute it. It contains an...
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... ... -- The ... bond was valid and binding upon all of the parties to it, and ... upon its breach can be sued upon: Keyser v. Keen, 17 ... Pa. 327; Grim v. School Directors of Jackson Twp., ... 51 Pa. 219; Simpson v. Bovard, 74 Pa. 351; Whitaker ... v. Richards, 134 ... ...
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...those who actually do sign will become bound when the obligee accepts the instrument and gives the valuable consideration therefor: Keyser v. Keen, 17 Pa. 327; Grim et al. School Directors of Jackson Twp., 51 Pa. 219; Simpson's Executor v. Bovard, 74 Pa. 351, 360; Whitaker et al. v. Richard......
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