Nash v. Fugate

• Decision Date: 14 January 1874
• Citation: 65 Va. 202
• Court: Virginia Supreme Court
• Parties: NASH v. FUGATE & als.

65 Va. 202

NASH v. FUGATE & als.

Supreme Court of Appeals of Virginia.

January 14, 1874

1. A bond which is a complete and perfect instrument on its face at the time of its delivery to the obligee, was executed by persons as sureties, upon the condition that it should not be delivered until executed by other persons, and it was placed in the hands of the principal obligor, and without being so executed it was delivered by the obligor to the obligee, who was not informed of the condition. The bond is the valid bond of the sureties, and they can not set up the condition against the obligee.

2. A joint and several bond is executed by several persons, and delivered to the obligee; and afterwards, with the consent of the obligee, but without the knowledge of the obligors another person executes it. As to those who first signed it it is joint as between themselves, and several as to the person last executing it.

This was an action of covenant in the Circuit court of Russell county, brought by Aaron H. Nash against A. W. Smith and nine other persons. The action was founded on an obligation of which the following is a copy:

For value received, we, or either of us, bind ourselves, our heirs, & c., to pay to Aaron H. Nash, thirty-five hundred dollars, to be paid in three equal annual payments; the first payment on the 1st of January 1870, the second on the 1st day of January 1871, the third to be paid on the 1st day of January 1872, with interest from date.

Witness our hands and seals this the 8th day of December 1868.

A. W. SMITH.

[Seal.]

Jos. C. FUGATE [Seal.]

J. C. FUGATE [Seal.]

J. W. SMITH [Seal.]

S. M. MUNCY. [Seal.]

ROBERT JOHNSON. [Seal.]

GEO. BANNER. [SEAL.

CHARLES G. GOSE. [Seal.]

GEORGE C. GOSE. [Seal.]

ISAAC. VERMILLION. [Seal.]

A. W. Smith put in the plea of payment. The other defendants filed pleas of non est factum, to which the plaintiff objected; but the court overruled the objection. Of these there were five; but the third was afterwards withdrawn. The first, fourth and fifth are general pleas of non est factum. The second sets out that their co-defendant, A. W. Smith, on the day of 18 , brought the paper on which the supposed writing obligatory is written, to them, with the body of said writing obligatory then fully written by him thereon, and a great many, to wit: about twenty scrolls made one directly under the other in a line on the right hand side of said paper, beginning just under the writing on the right hand side of said paper, and to which his said Smith's name was subscribed opposite the first scroll as an obligor, and then and there stated to these defendants that he was going to get twenty good solvent men to sign it with him as co-obligors, as his sureties, and amongst these twenty persons that he was going to get to sign it, he would get one Stephen Banner and Joseph Gilmer to sign it as a part and parcel of the said twenty obligors, and requested these defendants to sign it as a part of the said twenty persons; and then and there promised them that if they would sign it and deliver it to him, he would not use it or deliver it to the said plaintiff unless and until he procured the said number of persons to sign and seal it, and unless and until he procured the said Stephen Banner and Joseph Gilmer as a part of said number, to sign it as coobligors with him and these defendants. And they aver that only on that condition and none other, they did sign their names respectively to the said paper opposite the said scrolls where their respective names appear, and delivered the same to the said A. W. Smith, as an escrow, on the express agreement and understanding, that unless and until he procured with these defendants the said Stephen Banner and the said Joseph Gilmer and enough other good solvent persons to execute it and become bound as co-obligors in it with him, the said Smith and these defendants, he should not use it as their deed, nor deliver it as their deed to the plaintiff. And they further say that the said A. W. Smith wholly failed to get and procure the said Stephen Banner and Joseph Gilmer and the other solvent persons necessary to make the promised number to execute and become bound as co-obligors with himself and these defendants. Yet without their authority and consent and against the express agreement when they delivered it to him, delivered the same to the said plaintiff, & c. Wherefore they say the said supposed writing obligatory is not their deed.

Upon the trial of the cause the defendants asked the court to give five instructions to the jury, which were objected to by the plaintiff; but the court overruled the objections, and gave them: and the plaintiff excepted.

They are as follows:

1st. The court instructs the jury, that although the possession of the bond by the plaintiff is prima facie evidence that the bond had been properly delivered to him by the defendants, yet that presumption may be met and overturned by evidence: and if the jury believe from the evidence in the cause, that that presumption is met and overturned, they must find for the defendants, or such of them as they may believe have not delivered said bond or authorized the delivery.

2d. If the jury shall believe from the evidence, that the bond sued on was signed and sealed by the defendants and handed to A. W. Smith to be delivered to the plaintiff on any expressed condition, and not to be delivered to the plaintiff until said condition was performed, then unless the jury shall believe that said condition was performed before said delivery, it is not their bond, and they shall find for the defendants.

3d. If the jury shall believe from the evidence, that the bond sued on was signed and sealed by any part of the defendants and handed to A. W. Smith to be delivered to the plaintiff on any expressed conditions, and not to be delivered by said Smith to the plaintiff until said conditions were performed, then unless the jury shall believe that said conditions were performed before said delivery, is not the bond of those imposing said conditions, and they must find for said defendants.

4th. If the jury shall believe from the evidence, that any part of the defendants signed and sealed the bond sued on, and delivered it to A. W. Smith, not to be delivered to the plaintiff until certain specified conditions were performed, and that the other of said defendants signed and sealed said bond and delivered it not knowing of the conditions imposed by the other defendants, and believing that they were making themselves jointly liable with the other obligors, and that those conditions were not performed, that then it was not the bond of any of the defendants, and that the jury must find for the defendants.

5th. If the jury shall believe from the evidence, that A. W. Smith delivered the bond sued on to the plaintiff and received the consideration for it, and that it was a finished transaction between them; and that the said plaintiff to whom the bond had been previously delivered, handed the said bond to J. F. McElhenny to be stamped and handed to A. W. Aston for safekeeping, and then that afterwards, by the consent of the plaintiff, without the knowledge of all the defendants, the said bond was signed, sealed and delivered by Isaac Vermillion, then it is not the bond of any of the defendants who did not know of said transaction and consent to it, and the jury shall find for such defendants.

The jury found a verdict for the plaintiff against A. W. Smith, and in favour of the other defendants. And thereupon Nash applied to the court to set aside the verdict and grant him a new trial. But the court overruled the motion, and rendered judgment upon the verdict; and the plaintiff excepted; and applied to a judge of this court for a writ of error and supersedeas; which was allowed.

All the sureties on the bond were examined as witnesses. All but two of them state that they signed it upon the promise of A W. Smith to get other sureties to the bond; some of them say there were to be fifteen and others twenty: some say that Stephen Banner and Thomas Gibson were to be two of them. One says he counted the scrolls to the bond and there were twenty of them. Charles G. Gose says there were ten or twelve scrolls below his name; and George C. Gose says there were from eight to twelve below Charles G. Gose's name when he signed it. McElhenny states that Nash assigned his claim upon the estate of S. F. Hendricks to A. W. Smith, who gave him the bond. That after the assignment of this claim the bond not being stamped, it was brought to him by Nash, and left with him to be signed by Vermillion. That Smith and Vermillion came to his office, when Smith asked Vermillion to sign it, which he did the next morning; and witness instructed him to hand the note to Samuel W. Aston to be put in Afton's safe for safekeeping for Nash. That the appearance of the note now was not such as it was when it was handed to him by Nash, and the signature of Vermillion that witness saw him make did not look to witness as the same one now on the note. That at the time the bond was handed to him it was a half sheet of paper and there were several scrolls below those already signed. Vermillion says he signed the bond in McElhenny's office. That there were then some three or four scrolls below his name; he thought there were fifteen scrolls upon the paper in all. He states that he put the paper in his desk in his office, and when he came back some one had removed or scattered his papers. He then took the bond to his house and put it away. That he afterwards took out the note to give it to Nash when he should meet with him, and discovered that witness' name was torn...