Middleboro Nat. Bank v. Richards

• Decision Date: 23 September 1898
• Citation: 76 N.W. 528,55 Neb. 682
• Parties: MIDDLEBORO NAT. BANK ET AL. v. RICHARDS ET AL.
• Court: Nebraska Supreme Court

55 Neb. 682

76 N.W. 528

MIDDLEBORO NAT. BANK ET AL.

v.RICHARDS ET AL.

Supreme Court of Nebraska.

Sept. 23, 1898.

Syllabus by the Court.

1. If a bond in form a joint obligation is signed by a surety on condition that others are to become parties to the instrument in the same capacity, and delivery of the bond occurs without a compliance with the condition, the instrument is ineffective as to the party who so signed it, unless the obligee, prior to the delivery, was not apprised of the condition, or the signer, subsequent to execution of the bond, waived the condition.

2. If, when delivery of such a bond is made, there appears on its face that which discloses or suggests an infirmity or irregularity relative to one of the requisite signatures sufficient to cast the duty of an inquiry on the obligee, and no investigation follows, the condition and its lack of fulfillment may be potent matter of defense for the party who signed the bond conditionally, in an action thereon.

3. A surety may insist on a compliance with the plain import of his contract, inclusive, in a case like the present, of the condition which accompanied his signature; and, where the condition exacted the signature to the instrument of another party, it will not be satisfied with a subsequent ratification of the signature, which had been at the time of the execution thereof written on the paper by an unauthorized person.

Appeal from district court, Douglas county; Duffie, Judge.

Action by the Middleboro National Bank of Middleboro, Mass., and the Second National Bank of Winona, Minn., against James Richards and others. From the judgment, plaintiffs appeal. Affirmed.Byron G. Burbank, for appellants.

E. Wakeley and W. H. De France, for appellees.

HARRISON, C. J.

On September 10, 1889. Richards & Co. contracted with Washington county to erect for it a building,--a court house,--and to furnish the material therefor, and, in connection with the contract, executed and delivered to the county a bond conditioned for the due and full performance of the contract. The contractors purchased of the Bohn Sash & Door Company articles necessary for use in the erection of the building, and which were used in, on, and about it, of the value in the aggregate of $4,032.43; and the plaintiffs and appellants herein asserted ownership, respectively, of a portion of the account, by assignment, and, to effect its recovery, instituted actions on the bond to which we have hereinbefore referred; the basis of the right of action being, in substance, that by the terms and conditions of the contract and bond, connectedly, the bondsmen became obligated in the capacity of sureties for the contractor for the payment of the accounts for material purchased and employed in the performance of the contract. The plaintiffs were unsuccessful as to some of the defendants, and have perfected an appeal from the judgment of the trial court. That the points of discussion and decision may be more clearly understood, it seems proper to insert here a statement of some of the facts and circumstances relative to the form, substance, and execution of the bond involved in the litigation. In the body of the bond appeared the names of the sureties, and in the order as follows: “J. H. Hulbert, James Morton, John Epeneter, and Albert Fall.” After it had been signed by the principals, Richards& Co., it was presented to Morton for his signature. He objected to being the first of the sureties to sign the bond, and stated that it should have been taken to Hulbert, whose name was first as surety in the body of the instrument, and when signed by said party it would be in proper shape to request Morton's signature. Finally this objection was waived, and Morton signed the bond, with the agreement and condition that it was not to be considered complete or to be delivered until signed by all the sureties named in it, and, if not so signed, it should be returned to him. The signature of Hulbert was next obtained, on the same condition and agreement as with Morton; and the party who had the matter in charge went to the office or place of business of John Epeneter, who was then in Europe, and procured the name of John Epeneter to be written thereon by Epeneter's son Oscar E. Epeneter, who was then “bookkeeper and cashier” for his father. The signature was as follows: “John Epeneter. O. E. E.” The bond was subsequently signed by the other sureties, and delivered to the clerk of Washington county, and by him given to the county commissioners when in session, on the 12th of the same month,--September,--and was by them approved. It appears that prior to approval of the bond the attention of the commissioners was attracted to the signature as it purported to be attached for Epeneter, and there was some discussion of the matter, and during the course...