St. Louis Plattdeutscher Club v. Tegeler

• Decision Date: 05 May 1885
• Citation: 17 Mo.App. 569
• Parties: ST. LOUIS PLATTDEUTSCHER CLUB, Respondent, v. F TEGELER ET AL., Appellants.
• Court: Missouri Court of Appeals

17 Mo.App. 569

ST. LOUIS PLATTDEUTSCHER CLUB, Respondent,

v.F TEGELER ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

May 5, 1885.

APPEAL from the St. Louis Circuit Court, BARCLAY, J.

Reversed and remanded.

HENRY HITCHCOCK, JR., for the appellant: “If a bond contain the names of other obligors and is delivered without the signature of all, the obligor must enquire whether those who have signed consent to its being delivered without the signatures of others.”-- State to use v. Potter, 63 Mo. 212, citing Fletcher v. Austin, 11 Vt. 447; Brown v. Baker, 64 Mo. 167; State ex rel. v. Modrel, 69 Mo. 152.

C. A. SCHNAKE, for the respondent: The motion for a new trial was submitted at a term subsequent to that at which the judgment was rendered.-- Gill v. Scruggs, 79 Mo. 187; Givens v. Van Studdiford, 13 Mo. App. 168. And there being no general or special order of the court continuing the motion, it is necessary that the bill of exceptions should show an exception to the failure of the court to continue the motion.-- Nelson v. Withrow, 14 Mo. App. 270; Holt v. Simmons, 14 Mo. App. 450. The instrument became binding on all those who signed, sealed, and delivered it, although the names of only a part of them are recited in the body of the instrument.-- Keeton v. Spradling, 14 Mo. 321; Johnson v. Steamboat Lehigh, 13 Mo. 539; Cunnningham v. The State, 13 Mo. 402.

LEWIS, P. J., delivered the opinion of the court.

The record shows that this cause was tried in the circuit court at the February term, 1884, and that a motion for new trial was filed within the proper time. No entry appears in the bill of exceptions or elsewhere, of a continuance of the motion, but it was overruled on a day in the next succeeding term. The respondent therefore claims, on authority of Givens v. Van Studdiford (13 Mo. App. 168), that we should disregard the motion for a new trial, as having passed out of the jurisdiction of the trial court, for want of a continuance. This court, in Givens v. Van Studdiford, refused to presume successive continuances of a motion over the lapse of three terms. But it has never declined to consider a cause upon its merits, when they might be reached through the presumption of a single continuance of such a motion.-- Nelson v. Withrow, 14 Mo. App. 270.

The official bond given by defendant, Tegeler, as treasurer of the plaintiff, purports on its face to be the bond of Fred. Tegeler, as principal, and E. W. Hehmann and F. Meyer, as sureties. It is not signed by either of the alleged sureties, but is signed by the defendants George Fichtel and Henry Wittich, whose names appear nowhere else in the instrument, and by the defendant, Tegeler. There was testimony tending to show that, when Fichtel and Wittich were asked to sign the bond, they saw the names of Hehmann and Meyer written therein, and signed only upon the express condition and understanding with Tegeler, that the bond should also be executed by those persons before being presented for acceptance by the plaintiff. That, when the bond was offered at a meeting of the plaintiff club, objection was made on account of the absence of the signatures of Hehmann and Meyer, and a motion to accept the bond was defeated for that reason. Witnesses disagreed as to whether there was ever a formal acceptance of the bond at any meeting of the club. Upon this state of facts, the defendants Fitchel and Wittich claim that they are under no liability on the bond.

The legal question thus presented has been a subject of judicial discussion in very many cases, in Missouri and elsewhere. But the opinion of Chief Justice Sherwood in State to use, v. Potter (63 Mo. 212), contains such an exhaustive review of the leading adjudications, and its conclusions are so thoroughly harmonious with the sound principles which underlie apparently conflicting decisions that there is no need to look any further for general light on the subject, even aside from the controlling authority of the opinion itself. Throughout the opinion a distinction is carefully observed between cases wherein the bond is complete and regular on its face when presented to the obligee, and there is no knowledge nor any reason for a suspicion on his part that the execution was otherwise than unconditional, and those cases wherein, from manifest incompleteness or irregularity in the bond itself, or from more direct information, the obligee when accepting the bond is made aware of the conditional nature of the undertaking. It is clearly shown that in the first mentioned class--of which the case then under consideration was one--the defence here set up cannot be entertained. It was held therefore that the trial court had erred in refusing an instruction to the effect that, although it might appear that Potter, the surety, signed the bond under an agreement with Turley, the principal, that it was not to be filed or delivered until also...