Loew v. Stocker

• Decision Date: 11 May 1869
• Citation: 61 Pa. 347
• Parties: Loew <I>versus</I> Stocker.
• Court: Pennsylvania Supreme Court

Page 347

61 Pa. 347

Loew versus Stocker.

Supreme Court of Pennsylvania.

March 15 and 16, 1869.

May 11, 1869.

March 15th and 16th 1869.

Before THOMPSON, C. J., READ, AGNEW and WILLIAMS, JJ. SHARSWOOD, J., at Nisi Prius

Error to the Court of Common Pleas of Carbon county: No. 318, to January Term 1869.

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C. Albright and H. Green, for plaintiff in error.—The date and parties to the bond in the declaration are different from those in evidence: 2 Greenlf. Ev. §§ 56, 58, 66, 159, 160. This is a joint action, and a joint liability must be shown: Schoneman v. Fegely, 7 Barr 433; 1 Phillips on Ev. 507; Weall v. King, 12 East 452; Lopes v. De Tastet, 1 Brod. & Bing. 538; 3 Phill. Ev. 673-9, 690; Musgrove v. Gibbs, 1 Dall. 216; Umbehocker v. Rassell, 2 Yeates 339; Evert v. Barr, 4 Id. 99; Dillingham v. The United States, 2 W. C. C. R. 422; Stephens v. Graham, 7 S. & R. 505; Church v. Feterow, 2 Penna. R. 301; Scott v. Horn, 9 Barr 407; Geddis v. Irvine, 5 Id. 508; Ives v. Pickett, 2 McCord 271. Proof of Wheeler's authority was necessary: Bellas v. Hays, 5 S. & R. 436; Gordon v. Bulkeley, 14 Id. 331; Rankin v. Cooper, 2 P. A. Browne 13; Grove v. Hodges, 5 P. F. Smith 515. There should be a valid principal to bind a surety: Theobold on Prin. and Surety 1 (1 Law Lib.); Woods v. Washburn, 2 Pick. 24; Bean v. Parker, 17 Mass. R. 591. Unless the bond was what it purported to be, the valid obligation of all the parties, it is not the bond of the defendant: Fertig v. Bucher, 3 Barr 308; Keyser v. Keen, 5 Harris 327; Grim v. School. Div., 1 P. F. Smith 219; Sharpe v. U. States, 4 Watts 21; Mears v. Commonwealth, 8 Id. 225; Biery v. Harris, 5 Whart. 563; Seaton v. Henson, 2 Shower 28; Barrington v. Bank of Washington, 14 S. & R. 405; Smith v. Weld, 2 Barr 54; Pepper v. State, 22 Ind. 399; Sacramento v. Dunlap, 14 Calif. 421; Swanson v. Bell, 1 Hemp. 39; Brown v. Johnson, 13 Gratt. 644. As to the amendment: Streatfield v. Halliday, 3 Term R. 780; 1 Sand. R. 291, note c; 1 Chitty's Pl. 43; Sweigart v. Berk, 8 S. & R. 308; Nutz v. Reutter, 1 Watts 233; Hardwick v. McKee, 2 Bibb 595; Locke v. Daugherty, 7 Wright 88; Ridgely v. Dobson, 3 W. & S. 121; Hite v. Kier, 2 Wright 72; Pitts., F. W. and Ch. Railroad v. Evans, 3 P. F. Smith 250.

M. M. Dimmick, for defendant in error.—As to the amendment cited Acts of April 16th 1846, § 2, Pamph. L. 353, April 12th 1858, § 1, Pamph. L. 243, Purd. 46, 47, pl. 24; Jackson v. Lloyd, 8 Wright 82; Talmon v. Smith, 2 Sand. R. 207, note 2; Minor v. Bank of Alexandria, 1 Peters 74. As to the joint action, Act of April 6th 1830, § 1, Pamph. L. 277, Purd. 577, pl. 34; Burke v. Noble, 12 Wright 175; Keyser v. Keen, Grim v. School Districts, supra; Wood v. Ogden, Harrison 453; Cutter v. Whittemore, 10 Mass. 433; Adams v. Beam, 12 Id. 137; Gerard v. Basse, 1 Dall. 119; Ohio v. Bowman, 10 Ohio 455; Price v. Cloud, 6 Alabama 254; Elliott v. Davis, 2 Bos. & Pull. 339; Van Bramer v. Cooper, 2 Johns. R. 279; Hartness v. Thompson, 5 Id. 160; Ridgely v. Dobson, 3 W. & S. 118; Rhoads v. Frederick, 8 Watts 448. Where a person guaranties performance of another the principal need not execute the obligation. The testimony should have gone to the jury as to whether Brock's name was signed by his authority: Piggott v. Hollway, 1 Binn. 437. But by the agreement for a special verdict, the defendant admitted his signature and rendered this unnecessary: Berks and Dauphin Turnpike v. Myers, 6 S. & R. 13; Miller's Estate, 3 Rawle 318; Siegfried v. Levan, 6 S. & R. 311; Starkie on Ev., 510; Graham v. Lockhart, 8 Alabama 9; Hemphill v. Dixon, 1 Hempstead 235; 2 Phillips on Ev., 503-505, notes 442-443; Collins v. Lemasters, 2 Baily Rep. 141; Bellas v. Hays, Gordon v. Buckley, Groves v. Hodges, supra.

The opinion of the court was delivered, May 11th 1869, by WILLIAMS, J.

This was an action of debt, against the surviving obligors, upon a joint and several bond given to indemnify the plaintiff below, for levying upon and selling certain personal property on an execution directed to him as sheriff of Carbon county. After proof by the subscribing witness of the execution of the bond by all the obligors, with the exception of Jonathan Brock, whose name was signed thereto and seal affixed by O. H. Wheeler, as his authorized attorney, in the presence of the subscribing witness, the plaintiff below offered the bond in evidence without any proof of Wheeler's authority to sign it for Brock, the defendant. Loew, plaintiff in error, objected to its admission, but the court overruled the objection, and admitted it in evidence, to which he excepted, and assigns here its admission as error. The variance between the date of the bond, and its date as declared on, arose, doubtless, from a slip of the pleader, and would have been corrected if the attention of the court and opposite counsel had been called to it at the time of the offer. As the declaration might have been amended so as to avoid the variance, we should be disposed to treat it as amended here, if there were no other objection to the admission of the bond. But it was clearly inadmissible for another reason. As the action was against the surviving obligors, there could be no recovery without showing a joint liability of all, though one of them was not served with process: Schoneman v. Fegley, 7 Barr 433; Rowan v. Rowan, 5 Casey 181. It was, therefore, incumbent on the plaintiff to prove the execution of the bond by Brock before he was entitled to give it in evidence, and as it was signed for him by Wheeler, proof of his authority was indispensable. As there was no evidence of his authority, its execution by Brock was not proved, and the court erred in admitting it: 2 Greenl. Ev. § 159. And the error was not cured by any subsequent evidence, for the special verdict finds "that the bond in suit was not executed by Jonathan Brock himself, and there is no evidence that O. H. Wheeler was authorized to sign his name." But it may have been cured by the amendment of the record, by striking therefrom the name of Brock at the time the judgment was entered, if the court had authority to permit the amendment. But the court had no such authority, unless it is conferred by the Act of 4th May 1852, as construed by the Act of 12th of April 1858. Under these acts the names of parties, whether plaintiffs or defendants, may be stricken out or added whenever it is necessary to a trial on the merits: Rangler v. Hummel, 1 Wright 130. But the amendment in this case was not made until long after the trial, and the finding of a special verdict by the jury, and when nothing remained to be done but for the court to draw the legal conclusion from the facts found by them and enter the proper judgment thereon. How then can it be said that the amendment was necessary to a trial on the merits? And if it was not, the court had no authority to permit it.

In the express language of the act it is only "where, by reason of there being too many persons included as plaintiffs or defendants by mistake "that the court is authorized to permit an amendment by striking out from the suit such persons as plaintiffs or defendants as will prevent the cause being tried on the merits." We think that the amendment was not warranted by the letter or spirit of the act. It struck from the special verdict that part of the finding upon which the defendants rested their defence. If the amendment was improperly allowed, it is clear from the authorities already cited that the plaintiff below was not entitled to a judgment on the special verdict, for the reason that it did not show a joint liability on the part of all the obligors included in the action, even if it had been sufficient in other...