Spring Garden Ins. Co. v. Lemmon
| Decision Date | 16 May 1901 |
| Citation | 86 N.W. 35,117 Iowa 691 |
| Parties | SPRING GARDEN INSURANCE CO. v. HARRY LEMMON, T. J. PRICE AND L. R. GENEVA, Appellants |
| Court | Iowa Supreme Court |
Appeal from Mahaska District Court.--HON. JOHN T. SCOTT, Judge.
THE defendant Lemmon was agent for plaintiff company at Oskaloosa. As such agent he gave a bond to secure plaintiff for any moneys belonging to it which might come into his hands. Defendants Price and Geneva were sureties thereon. This action is brought on such bond to recover a balance due from Lemmon. There was a directed verdict for plaintiff, and from the judgment rendered thereon defendants appeal.
Reversed.
L. C Blanchard and Bolton, McCoy & Bolton for appellants.
Lacey & Lacey for appellee.
Lemmon was not served with notice of this action, and does not appear. The sureties set up as a defense that they signed the bond without reading, at Lemmon's request, and upon his statement that it was a recommendation, to be used in enabling him to secure the agency of defendant company, and imposed no liability on the signers; that the bond contained no fixed penalty when signed, and the amount of $ 300 was thereafter inserted by some person without the knowledge or consent of defendants; and that a certificate of acknowledgment was afterwards added, although neither of these defendants ever acknowledged the same, or consented to such addition.
I. Defendants, as they testify, signed this instrument without reading it, relying solely upon Lemmon's statement of its terms. Nothing was done to prevent them from acquainting themselves with its contents, had they so desired. As this court has frequently held, this is such indifference as will preclude a remedy in their behalf in the event of deception. McCormack v. Molburg, 43 Iowa 561; Bannister v McIntire, 112 Iowa 600, 84 N.W. 707, and cases cited therein. Defendants must be held bound by their signatures, in so far as the instrument expresses a legal obligation.
II. The evidence tended to show that the bond was made out on a printed form, which contained, among other blanks, a space for the insertion of the penalty. When signed this blank was not filled. Afterwards, without the sureties consent or knowledge, the words "three hundred" were written in by an agent of plaintiff. The general rule is that a bond in which the amount of the penalty is left blank is invalid, and no action can be maintained thereon. Copeland v. Cunningham, 63 Ala. 394; Church v. Noble, 24 Ill. 291; Evarts v. Steger, 6 Ore. 55; Case v. Pettee, 5 Gray 27; Brandt, Suretyship, section 26. It may be, if a promise to make good the agent's default had appeared in the defeasance part of the obligation, it could be enforced. Treasurer v. Douglas, 77 Mo. 647. No such promise...
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