Sellers v. Territory ex rel. Cnty. Attorney
Decision Date | 18 November 1911 |
Docket Number | Case Number: 1244 |
Parties | SELLERS et al. v. TERRITORY ex rel. COUNTY ATTORNEY. |
Court | Oklahoma Supreme Court |
¶0 1. PRINCIPAL AND SURETY--Bond--Release of Sureties. 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.
2. COURTS--Admission of Territory--Action--Entitling. 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.
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, and defendants bring error. Affirmed.
Thos. W. Conner and C. C. Wells, for plaintiff in error
H. D. Henry, Co. Atty., for defendant in error
¶1 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:
¶2 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 Okla. 537, 96 P. 636; Childs, Suretyship & Guaranty, sec. 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 ( ); Gibbs v. Johnson, 63 Mich. 671, 30 N.W. 343.
¶3 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. 579, 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 Planing Mill Co., 55 Kan. 518, 40 P. 904; State v. Thatcher, 41 N.J.L. 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 says:
¶4 The sureties were held liable.
¶5 Then the first question is: Did Border sign the instrument upon the condition that Rogers would also sign, or did he in signing it merely rely upon the representation that Rogers would sign? As appears from the statement of facts, Henry said to Border: "Just come over and sign it, and I will get Rogers to sign it before it is approved or filed." It does not appear that Border made the signature of Rogers a condition precedent to the delivery...
To continue reading
Request your trial-
Bow v. R. & N. Oil Gas Co., Ltd.
......(. Mitchell v. Altus State Bank, supra; Sellers v. Territory. of Oklahoma, 32 Okla. 147, 121 P. 228; ... [251 P. 299] . amount to be allowed as attorney fees, to fix such attorney. fees and enter judgment ......
-
Sellers v. Territory
...121 P. 228 32 Okla. 147, 1911 OK 476 SELLERS et al. v. TERRITORY ex rel. COUNTY ATTORNEY. Supreme Court of OklahomaNovember 18, 1911 . Syllabus. by the ......
-
Hayes v. State Exch. Bank
......Sellers et al. v. Territory, 32 Okla. 147, 121 P. 228, and ......
-
Edwards v. City Nat. Bank of Mcalester
...... and principles, see the following Oklahoma cases: Sellers et al. v. Territory ex rel. County Attorney, 32 Okla. 147, ......