Syllabus
by the Court.
Defendant
signed a bail bond at the request of a cosurety, relying upon
the promise of the cosurety to obtain the signature of
another person as surety before the bond was approved or
filed, but without making the signature of the other person a
condition precedent to the taking effect of the bond. The
bond was approved and filed and the principal released
without the signature of the third person. Held
that defendant was liable on the bond.
A suit
instituted in the name of the territory of Oklahoma, prior to
the admission of the state into the Union, may proceed by the
same title after the admission of the state.
Commissioners'
Opinion, Division No. 2. Error from Greer County Court
Jarrett Todd, Judge.
Action
by the Territory of Oklahoma, on the relation of the County
Attorney, against Jim Sellers and others. Judgment for
plaintiff. Defendants bring error. Affirmed.
ROSSER
C.
This is
an action upon a bail bond of Jas. P. Sellers, upon which the
other two defendants, W. B. Henry and G. F. Border, were
sureties. The bond was forfeited regularly upon the
nonappearance of the principal. The county attorney brought
suit, alleging the execution of the bond and its forfeiture.
The parties filed a stipulation as to the facts, which is as
follows: "The defendant G. F. Border was not personally
acquainted with the defendant James P. Sellers, and was
induced to sign the bond sued on as one of the obligors by
and upon the representation then made to him by defendant W.
B. Henry. The representations so made to G. F. Border by W.
B. Henry were as follows: W. B. Henry went to the office of
G. F. Border and asked him to come across the street to
another office and sign a bond to get Jim Sellers out of
jail, saying: 'It is just a matter of form. There is no
danger. It is all understood by the officers, including the
county attorney. Sellers is to be a witness in a case for the
territory, and the officers want him out of jail. Deputy
Sheriffs A. C. Bragg, C. C. Rogers, and myself will stand
good for it and see to it that you don't have to pay
anything. Rogers and I will sign the bond, and Bragg will
stand good for your part of it; but he does not want to sign
it for political reasons. Just come over and sign it with me,
and I will get Rogers to sign it before it is approved or
filed. Just a matter of form, no danger in it, and, in any
event Bragg, Rogers and I will protect you. Sellers is
charged with stealing a mule; but he is not going to be
prosecuted in consideration of his giving testimony against
the man who was with him in stealing the mule. This bond is
to get him out of jail away from the fellow, and you take no
risk in signing it.' G. F. Border would not have signed
the bond but for the foregoing representations so made to him
by W. B. Henry, and he believed and relied upon those
representations. He simply signed the bond, qualified
thereon, and went back to his office, expecting C. C. Rogers
to sign it before it was filed or approved, and believing
that it was simply a formal matter, and that the
sheriff's force and the county attorney would see to it
that he was held harmless. A. C. Bragg, C. C. Rogers, and W.
B. Henry were at the time deputies under John B. Overton, who
was sheriff of Green county, Okl. J. B. Overton, sheriff,
afterwards approved and filed the bond in the case of the
Territory of Oklahoma v. James P. Sellers, and in
consideration thereof released the said James P. Sellers from
custody. Overton had no conversation with Border and was not
present when W. B. Henry made the aforesaid representations.
Overton had no part in the inducement to Border to sign the
bond, and simply approved and filed the bond when it was
handed to him by Henry and Rogers, after Border had signed it
and left it with Henry for Rogers to sign. This agreement is
not to prejudice a right of an appeal or trial de novo in
district court. Chas. M. Thacker, Attorney for plaintiff. C.
C. Wells, Attorney for defendants."
Where a
person becomes surety on a bond upon the condition that the
bond will not become effective until other named persons also
sign as sureties, if the obligee in the bond has notice of
this condition, the surety cannot be held liable. Wm.
Lemp Brewing Co. v. Secor, 21 Okl. 537, 96 P. 636;
Childs, Suretyship & Guaranty, p. --, § 6, and authorities
there cited. If, however, the obligee in the bond has no
notice of this condition, the surety will be responsible,
notwithstanding the condition made. Dair v. United
States, 16 Wall. 1, 21 L.Ed. 491; State v.
Potter, 63 Mo. 212, 21 Am. Rep. 440 (an exhaustive
opinion with a full review of the authorities); Gibbs v.
Johnson, 63 Mich. 671, 30 N.W. 343.
It is
no defense to the surety, however, that he signs a statement
upon a mere representation or promise that a third person
will sign before it is delivered. Trustees of Schools v
Sheik, 119 Ill. 589, 8 N.E. 189; Readfield v.
Shaver, 50 Me. 36, 79 Am. Dec. 592; State v.
Gregory, 119 Ind. 503, 22 N.E. 1; Simpson v.
Bovard, 74 Pa. 351; Whitaker v. Richards, 134
Pa. 191, 19 A. 501, 7 L. R. A. 749, 19 Am. St. Rep. 684;
Risse v. Hopkins Planning Mill Co., 55 Kan. 518, 40
P. 904; State v. Thatcher, 41 N. J. Law, 403, 32 Am.
Rep. 225; Traill v. Gibbons, 2 Fost. & F. 358. In
the case of Trustees of Schools v. Sheik, 119 Ill.
579, 8 N.E. 189, Reitz promised the sureties that he would
sign the bond before it was delivered. In the course of the
opinion the court say: "If the bond had been signed by
the sureties upon the condition that it should not be
delivered to the trustees until executed by the treasurer,
and if the trustees had received notice of such condition, or
notice of such facts pointing to such a condition as might
put a prudent person on inquiry, before the bond was
approved, then they could not be regarded as innocent holders
of the instrument, and entitled to maintain an action upon
it. But the sureties, as appears, did not sign the bond on
such a condition, but executed the instrument, and relied
merely upon the promise of the treasurer that he...