Star Grocer Co. v. Bradford
| Decision Date | 12 March 1912 |
| Parties | STAR GROCER CO. v. BRADFORD et al. |
| Court | West Virginia Supreme Court |
Submitted June 10, 1911.
Syllabus by the Court.
Sureties in a bond are not released by omission of the principal to execute it, if he is bound by law or a collateral contract recited in the bond, for the performance of the duty recited in the condition thereof.
Such technical incompleteness in the bond, under such circumstances, imposes upon the obligee no duty of inquiry as to whether it was delivered by the sureties on condition that the principal should execute it, nor to require him to do so since the sureties suffered no substantial prejudice from such omission.
Receipts statements, and other evidences of liability in the handwriting of the principal are admissible evidence against the sureties, and prove prima facie liability on their part.
Relation of a witness to the subject-matter of his testimony, such as his incumbency of an office in a private corporation on whose behalf, as a party to the suit, he is to testify, may be shown by his oral evidence.
Error to Circuit Court, Ritchie County.
Action by the Star Grocer Company against W Bradford and another. Judgment for plaintiff, and defendants bring error. Affirmed.
Robinson & Prunty, for plaintiffs in error.
Kreps & Russell and Adams & Cooper, for defendant in error.
The bond constituting the basis of this action, and given by a traveling salesman to secure faithful performance of his written contract with his principal, contains, in the obligatory clause thereof, the name of the salesman, described as principal, and the condition recites his employment, his duty to collect accounts for his employer, and the existence of an article of agreement between them, giving its date, but is signed by the two defendants herein only as sureties. Its obligation as to them is denied on two grounds: (1) Its acceptance by the obligee in an obviously incomplete condition; and (2) acceptance thereof by the obligee with knowledge of its execution and delivery, upon condition that other persons, who did not do so, were to execute it as sureties along with the defendants and the principal, one O. J. Wilson.
Incompleteness of a bond on its face, when tendered to the obligee, is sufficient to put him upon inquiry as to whether those whose signatures it bears intended to be bound by it in such condition. This is particularly and universally true when the names of persons, apparently contemplated as additional sureties appearing in the body of the bond or elsewhere, have not been signed to it. Wendlinger v. Smith, 75 Va. 309, 40 Am.Rep. 727; Nash v. Fugate, 32 Grat. 595, 34 Am.Rep. 780; Ward v. Churn, 18 Grat. 801, 98 Am.Dec. 749; Hicks v. Goode, 12 Leigh, 479, 37 Am.Dec. 677. The apparent imperfection is suggestive of a delivery upon condition, and imposes upon the obligee the duty of inquiry as to whether there was such a qualified delivery, omission of which releases the sureties; and parol evidence is admissible to prove the condition, which diligent inquiry would have revealed.
Nothing on the face of this bond, however, indicates incompleteness as to the sureties, or failure of any person to sign it as surety. But lack of the signature of the principal renders it in a sense incomplete, and this fact is relied upon as having the same effect as incompleteness in respect of sureties. As to whether lack of the signature of the principal raises the same duty on the part of the obligee, and discharges the sureties in case of omission thereof, the authorities are in conflict. In some jurisdictions and under some circumstances, the sureties are held not bound. Wood v. Washburn, 2 Pick. (Mass.) 24; Ferry v. Budget, 21 Conn. 602; Brown v. Jetmore, 70 Mo. 228, 35 Am.Rep. 425; Russell v. Annable, 109 Mass. 72, 12 Am.Rep. 665; Bryant v. Kinyon, 127 Mich. 152, 86 N.W. 531, 53 L.R.A. 801; Bean v. Parker, 17 Mass. 591; People v. Hartley, 21 Cal. 585, 82 Am.Dec. 758; Johnson v. Township, 39 Mich. 187, 33 Am.Rep. 372; Lyman v. Williams, 84 Ill.App. 82. On the contrary, many cases hold the bond good and valid as to the sureties, without the signature of the principal, when the latter is bound by law or his special contract for the debt or default for which the bond was given. State v. Bowman, 10 Ohio 445; Trustees v. Sheib, 119 Ill. 579, 8 N.E. 189; Pima County v. Snyder, 5 Ariz. 45, 44 P. 297; Cockrill v. Davie, 14 Mont. 131, 35 P. 958; Mitchell v. Building Stone Co. (Tex. Civ. App.) 129 S.W. 148; Wright v. Jones, 55 Tex. Civ. App. 616, 120 S.W. 1139; Williams v. Marshall, 42 Barb. (N. Y.) 524; Brewing Ass'n v. Hayes, 97 F. 859, 38 C.C.A. 449. The decided weight of authority throughout the country, and especially of the later cases, is that the sureties are bound by such an instrument, if the principal is bound by law or his special contract for the debt or default for which the sureties have obligated themselves.
The argument of inconvenience or violation of technical rules is answered by the court in State v. Bowman, cited, as follows That the sureties can recover from the principal what they have been compelled to pay on account of their suretyship in a bond, not executed by the principal, is asserted in Harnsberger v. Yancey, 33 Grat. 527. This being true, the sureties are not, in any substantial sense, prejudiced by inability of the obligee to sue the principal along with them on the bond. The ground of their release, in case of the omission of a surety to sign, as contemplated by the parties, is the injury resulting to those who signed, in case they were bound, because of their inability to exact contribution from the omitted cosurety, since he is not bound at all. This result cannot be predicated of the omission of the principal to sign, when the law or another contract binds him as firmly and fully as the bond would have bound him, had he executed it, and for the benefit of the sureties under the law of subrogation, as well as that of the obligee. Every rule and exception is coextensive only with the reason underlying it; and, as there is no substantial reason for discharge of the sureties under such circumstances, they should be held liable. The equitable remedies for subrogation and indemnity are as fully available and efficacious as if the...
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