School District No. 80 v. Lapping
| Decision Date | 15 February 1907 |
| Docket Number | Nos. 15,008-(150).,s. 15,008-(150). |
| Citation | 100 Minn. 139 |
| Parties | SCHOOL DISTRICT NO. 80 IN MORRISON COUNTY v. F. D. LAPPING and Others.<SMALL><SUP>1</SUP></SMALL> |
| Court | Minnesota Supreme Court |
Action in the district court for Morrison county to recover $209.88 on the bond of plaintiff's treasurer. The case was tried before Searle, J., who made findings and ordered judgment in favor of defendants. From the judgment entered pursuant to the findings, plaintiff appealed. Affirmed.
Lindbergh & Blanchard, for appellant.
Stewart & Brower and R. S. Clarke, for respondents.
Action upon a treasurer's bond. Defense, that the bond was executed by respondents with the intention that it should become a binding obligation only in case of its execution by the treasurer as principal. Judgment entered for respondents.
F. D. Lapping, having been elected treasurer of school district number 80 in Morrison county, was required to execute and deliver a bond conditioned upon the faithful discharge of his duties. The bond was prepared by the clerk, Martin, and respondents were requested by Lapping to execute the same as sureties. According to Martin, who testified for appellant, Lapping notified him that he was ready with his bondsmen to qualify; that he (Martin) then filled out the bond and each of the sureties signed and acknowledged it. On cross-examination, Martin stated that, when he received the bond after execution, he did not notice that Lapping had not signed it. The bond was in fact accepted without the signature of the treasurer.
Respondent Ragan testified that Lapping, as treasurer, Foss and Van Alstine, the other sureties, and Barton and Chesney, came to his store for the purpose of executing the bond; that Martin filled out the bond and called Lapping to sign it; that Lapping stepped around and made a stroke with his pen, and that he (Ragan) thought Lapping signed the bond; that Foss was next called by the clerk, and Ragan last. The witness said he did not notice whether Lapping had in fact signed the bond, but that he saw him go through the motions of doing so; that, after the three sureties had signed the bond, the clerk took it away, and that was the last he saw of it. The witness stated that he believed Lapping had signed the bond, and that it was not his intention to be bound as surety only, and expected Lapping to sign the bond, and supposed he had done so, and did not at that time know that he had not.
Respondent Foss testified that Van Alstine was the first to sign.
Q. Did you see this circumstance Mr. Ragan testifies to of Lapping sitting down and going through the motions of signing it? A. It looked that way to me. He was up there, I know that. * * * Q. Now, at the time you signed it, did you know that Lapping had not signed it? A. No; I did not. Q. What was your belief about it? A. Why, I thought he signed it. * * * Q. And was it your intention, Mr. Foss, to be bound without — to be bound as surety without Mr. Lapping signing as principal? A. No, sir.
The witness stated that he did not, until a considerable time thereafter, know that Lapping had not signed the bond.
Respondent Van Alstine testified that Lapping had asked him if he would sign with him, and that Martin, the clerk, asked him if he was willing to go as surety on the bond with Lapping; that he went down to sign the bond, and did not notice that Lapping had not signed it; that he started to sign it in the wrong place, when the clerk called his attention to it and indicated the proper place to sign, whereupon he did so. The witness stated it was not his intention to be bound without Lapping signing the bond, and that he did not learn of Lapping's failure to do so until some time later.
Upon this evidence the court found that Lapping solicited respondents to execute the bond as sureties for him as treasurer; that the bond was approved by the school district and clerk, but was in fact never signed by Lapping, the treasurer; that it was not the intention of respondents to become bound by the bond, or to enter into the relation of sureties for Lapping without his signature thereto, and that it was not the intention of the officials that respondents should become bound as sureties without the signature of the treasurer; and that respondents believed that the treasurer had duly executed the bond until the fact was disclosed some time after its execution.
1. A bond, purporting to be the obligation of one as principal and of others as sureties, but which has been executed only by the sureties, does not upon its face show any obligation on the part of such sureties. State v. Austin, 35 Minn. 51, 26 N. W. 906. This rule was followed in Bjoin v. Anglim, 97 Minn. 526, 107 N. W. 558, where it was held that the complaint in an action upon such a bond was insufficient; it not appearing that the sureties waived the execution of the bond by the principal and authorized its delivery to the obligee as a valid obligation.
In the present action the complaint alleges that, when signing the bond, the sureties knew Lapping had not signed it, but intended to become bound by the instrument without his signature, and duly delivered the same to the school district as the bond of the treasurer and of themselves. These allegations were put in issue by the answer, and the main question is whether the evidence...
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