McHugh v. County of Schuylkill

• Decision Date: 09 February 1871
• Citation: McHugh v. County of Schuylkill, 67 Pa. 391, 5 Am.Rep. 445 (Pa. 1871)
• Parties: McHugh <I>versus</I> The County of Schuylkill.
• Court: Pennsylvania Supreme Court

67 Pa. 391

McHugh versus The County of Schuylkill.

Supreme Court of Pennsylvania.

January 20, 1871.

February 9, 1871.

January 20th 1871.

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

Error to the Court of Common Pleas of Schuylkill county: Of January Term 1870, No. 366.

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H. B. Graeff and J. W. Ryan, for plaintiff in error.—The bond as to McHugh being void at its inception could not be ratified: Duncan v. McCullough, 4 S. & R. 483; Chamberlain v. McClurg, 8 W. & S. 31.

A. W. Schalck (with whom was G. D. B. Keim), for defendant in error.—The plaintiff is estopped by his laches: Garrigues v. Harris, 5 Harris 351; Martin v. Ives, 17 S. & R. 366. When a loss must befall one of two innocent persons, he must bear it, through whose act it was occasioned: Hill v. Epley, 7 Casey 334; Epley v. Witherow, 7 Watts 165; Carr v. Wallace, Id. 400; Patterson v. Lytle, 1 Jones 56; Nass v. Van Swearingen, 10 S. & R. 146; Commonwealth v. Moltz, 10 Barr 530; Keeler v. Vantuyle, 6 Id. 253; Chapman v. Chapman, 9 P. F. Smith 214; Bridge Co. v. Kline, Brightly's R. 324; Garrett v. Gonter, 6 Wright 143. A consideration is not necessary to the validity of a bond; Page v. Trufant, 2 Mass. 159; and a failure of consideration is not a defence to an action on a bond: Dorlan v. Sammis, 2 Johns. 179. The seal imports a consideration, and creates a legal obligation: Candor's Appeal, 3 Casey 119. One who has been induced to enter into an agreement by fraud may affirm the contract after the discovery of the fraud: Whitney v. Allaire, 4 Denio 554; Blydenburgh v. Welsh, Bald. 331; Ulingate v. King, 10 Shep. 35; Byers v. McClanahan, 6 Gill & Johnson 250; Rhode v. Louthain, 8 Blackf. 413; Hill v. Scales, 7 Yerger 410.

The opinion of the court was delivered, February 9th 1871, by READ, J.

If the story told on the part of the plaintiff is believed, then his name was forged as a surety upon a bond given to the county of Schuylkill by a collector of taxes, by the principal in the instrument. Assuming this to be a fact for the purposes of the case, the question is, was the court in error either in its answers to the points, or in its charge to the jury? A forged deed is void. The plaintiff cannot write, and there is no mark to the name of James McHugh on the bond, and the name is proved to be in the handwriting of his daughter, who was directed by McKenna, the principal, to sign it, and if the testimony is believed without a shadow of authority from the plaintiff McKenna, using the daughter and son as his innocent instruments in committing this crime. There is not a particle of evidence that the commissioners or any of the county authorities ever saw the plaintiff, but the whole testimony which is relied on to establish the plaintiff's liability, are vague conversations and declarations from which approval, acquiescence or ratification are inferred.

From the answers to the defendant's points, and the charge of the court, the learned judge appears to have instructed the jury that if the plaintiff subsequently approved and acquiesced in this void act, or ratified it or subsequently approved of it, then the bond was binding upon him. No new consideration of any kind was either alleged or pretended, and the cases of Duncan v. McCullough, 4 S. & R. 483, Chamberlain v. McClurg, 8 W. & S. 31, 36, Goepp's Appeal, 3 Harris 428, show clearly, that under the circumstances the act simply retains its original character, and is entirely void.

Judge Rogers says, 8 W. & S. 36, "The principle which rules this part of the case, is ruled in Duncan v. McCullough, administrator...