Sellers v. Territory ex rel. Cnty. Attorney

Decision Date18 November 1911
Docket NumberCase Number: 1244
PartiesSELLERS et al. v. TERRITORY ex rel. COUNTY ATTORNEY.
CourtOklahoma Supreme Court
Syllabus

¶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

ROSSER, C.

¶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:

"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. The 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 Greer county, Okla. 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."

¶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 (an exhaustive opinion with a full review of the authorities); 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:

"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 would before delivery of the bond sign it."

¶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...

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4 cases
  • Bow v. R. & N. Oil Gas Co., Ltd.
    • United States
    • United States State Supreme Court of Idaho
    • April 30, 1926
    ......(. 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
    • United States
    • Supreme Court of Oklahoma
    • November 18, 1911
    ...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
    • United States
    • Supreme Court of Oklahoma
    • December 14, 1915
    ......Sellers et al. v. Territory, 32 Okla. 147, 121 P. 228, and ......
  • Edwards v. City Nat. Bank of Mcalester
    • United States
    • Supreme Court of Oklahoma
    • September 13, 1921
    ...... and principles, see the following Oklahoma cases: Sellers et al. v. Territory ex rel. County Attorney, 32 Okla. 147, ......

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