Martin v. Hornsby

• Decision Date: 08 November 1893
• Citation: 55 Minn. 187,56 N.W. 751
• Parties: MARTIN v. HORNSBY ET AL.
• Court: Minnesota Supreme Court

55 Minn. 187

56 N.W. 751

MARTIN

v.HORNSBY ET AL.

Supreme Court of Minnesota.

Nov. 8, 1893.

(Syllabus by the Court.)

1. A bond purporting to be the joint and several obligation of one who is about to be commissioned as a notary public, as principal, and of others as sureties, but which has been executed by the sureties only, does not, upon its face, show any contract obligation on the part of such sureties.

2. Upon an examination of the evidence presented upon the trial of this case, it is held that said sureties had not, by their conduct, subjected themselves to liability upon the instrument, nor become estopped from questioning its validity because unfinished and incomplete.

Appeal from district court, Ramsey county; Kerr, Judge.

Action on a bond by Benjamin F. Martin against A. H. Hornsby, Uri L. Lamprey, and others. There was a judgment for defendants, and a new trial denied. Plaintiff appeals. Affirmed.

H. H. Herbst, for appellant.

Chas. N. Bell, Uri L. Lamprey, and Geo. E. Budd, for respondents.

COLLINS, J.

The question of law presented in this appeal is whether the sureties named in, and who signed, an instrument designed to be the bond required, under Gen. St. 1878, c. 26, § 2, of a person about to be appointed a notary public, are bound by its conditions when the principal has failed to sign the same. The instrument purported to be the joint and several obligation of “A. H. Hornsby as principal, and U. L. Lamprey and Chas. W. Clark as sureties.” It was conditioned that “the above-bounden A. H. Hornsby” should faithfully discharge the duties of a notary. Through inadvertence in the office of the chief executive, the failure on the part of the principal to sign the purported obligation was overlooked. It was approved, and a commission issued.

The statute above referred to clearly contemplates the execution of a bond, with the appointee as the principal, and with sureties; and this is more apparent when we read, in connection, the first three sections of Gen. St. 1878, c. 78, which authorize and provide for the bringing of actions upon official bonds. So the bond in question was not executed in compliance with the law, but was unfinished and incomplete. Speaking of a somewhat similar instrument, this court said, in State v. Austin, 35 Minn. 51,26 N. W. Rep. 906, that: “Upon its face, the bond appears to be incomplete. It was not the obligation of the principal named. It did not, so far as appears, bind the sureties, because, as appears from the instrument, the obligation which they assumed was that of sureties for another, who was to be the principal obligor. It was not, therefore, of effect, as the bond of even those who executed it.” This language is in point here, and, in addition to cases there noted, attention may be called to Curtis v. Moss, 2 Rob. (La.) 367; Board v. Sweeney, (S. D.) 48 N. W. Rep. 302, and cases cited. Prima facie, the instrument now being considered was incomplete and invalid, and was not binding upon those who signed it as sureties. Nor can we see that a distinction can be drawn between bonds which are simply joint, and those which are joint and several, as was that in controversy. The doctrine upon which all of the cases before referred to are rested will not admit of such a distinction, nor is it suggested in the leading case on the other side cited by counsel for appellant. Trustees v. Sheik, 119 Ill. 579, 8 N. E. Rep. 189.

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