People to Use of National Sewer Pipe Co. v. Sharp

• Decision Date: 29 May 1903
• Citation: 133 Mich. 378,94 N.W. 1074
• Court: Michigan Supreme Court
• Parties: PEOPLE, to Use of NATIONAL SEWER PIPE CO., v. SHARP et al.

94 N.W. 1074

133 Mich. 378

PEOPLE, to Use of NATIONAL SEWER PIPE CO., v. SHARP et al.

Supreme Court of Michigan

May 29, 1903

Error to Circuit Court, St. Clair County; Frank Whipple, Judge.

Action by the People, for the use and benefit of the National Sewer Pipe Company, against Andrew Sharp and others. Judgment for defendants, and plaintiff brings error. Affirmed.

James A. Muir, for appellant.

Avery Bros. & Walsh and George G. Moore, for appellees.

MONTGOMERY J.

This is an action on a bond given for the protection of laborers and materialmen who should extend credit to Sharp & Schultz contractors with the city of Ann Arbor for the construction of a sewer. The bond is in the sum of $5,000, and purports to have been executed by Sharp & Schultz as principals, and the defendants McMorran and Wargowsky as sureties. The plea of defendant McMorran was accompanied by a notice containing the following: 'DEFENDANT WILL FURTHER SHOW THAT PRIOR TO thE date of said bond, and about that date, he was requested by Rudolph C. Wargowsky to sign a bond in which the said Wargowsky and Andrew Sharp and August Schultz were principals, and this defendant and Lewis Kurtz should be sureties, and was assured that said Kurtz would be a party thereto, and his name was written in the body thereof, and this defendant never executed any other bond than one jointly with the said Kurtz as sureties and with the principals as aforesaid, unless he was deceived and defrauded in the execution thereof; that, after the execution by this defendant, the form of said bond was changed, and the name of said Kurtz omitted therefrom, whereby the same became void and of no binding force and effect.' This was followed by an affidavit denying the execution of the bond for the reasons stated in the notice. When the case was called for trial, defendant Wargowsky was permitted to amend his plea by adding the following: 'Defendant will further show that prior to the time of the signing of the bond which was signed by him, a bond was presented to him by Sharp & Schultz, the defendants above named, in which their names appeared as principals, and the name of Henry McMorran, this defendant and Lewis Kurtz appeared as sureties, and said Sharp &amp Schultz represented to this defendant that one Lewis Kurtz signed said bond in addition to the said Sharp & Schultz, Henry McMorran, and this defendant, as a surety, and that this defendant would not be liable on said bond, and said bond would not be delivered and used, unless said Kurtz executed and signed the same, and relying upon these representations, and with the express agreement, understanding, and condition that the said Kurtz would sign said bond, and that said bond would not be delivered until said Kurtz had signed the same, said defendant Wargowsky signed the bond that he did sign, but that said bond contained the name of said Lewis Kurtz in the body thereof at the time he so signed the same; that, after the execution by this defendant of said bond mentioned, the same was altered and changed by the erasure of the name of the said Lewis Kurtz therefrom, whereby the same became void' [133 Mich. 381] --and to attach an affidavit denying the execution...