State ex rel. Goddard v. Dean

• Decision Date: 31 March 1867
• Citation: 40 Mo. 464
• Parties: THE STATE OF MISSOURI TO THE USE OF FRANKLIN H. GODDARD, Respondent, v. HENRY DEAN and ELIZABETH MATTHEWS, Adm'x of THOMAS MATTHEWS, dec'd, Appellants.
• Court: Missouri Supreme Court

40 Mo. 464

THE STATE OF MISSOURI TO THE USE OF FRANKLIN H. GODDARD, Respondent,

v.HENRY DEAN and ELIZABETH MATTHEWS, Adm'x of THOMAS MATTHEWS, dec'd, Appellants.

Supreme Court of Missouri.

March Term, 1867.

Appeal from St. Louis Circuit Court.

At plaintiff's request the court gave the following instructions, to the giving of which defendants excepted:

1. If the bond read in evidence was executed in blank, to be filled up afterwards by the addition of a list of the goods taken, or of any other part thereof, the addition of such matter after the signing will not affect the validity of the bond, or discharge the obligors.

2. If said bond was executed and delivered to the sheriff, or his deputy, to indemnify Franklin H. Goddard, as claimant, of the goods seized, and by mistake his name was first written Francis Goddard, and afterwards changed to his correct name, Franklin Goddard, such change will not vitiate said bond, or discharge said obligors, though it were made after the signing and delivery of said bond.

The court then gave the following instruction for defendants:

1. If the court, sitting as a jury, believe from the evidence that the bond sued on was executed and delivered to the sheriff in blank as to the goods claimed, and that afterwards the inventory of goods was attached without the consent or knowledge of defendants, then the finding should be for defendants.

Defendants then asked the court to give the following instructions, which the court refused to give, and defendants excepted:

2. If the court, sitting as a jury, believe from the evidence that the bond sued on was executed and delivered to the sheriff to protect the sheriff against the claim of Francis H. Goddard, and that afterwards the sheriff, without the knowledge or consent of defendant, changed the name of Francis to Franklin, then the finding should be in favor of defendants.

3. If the court, sitting as a jury, believe from the evidence that, after the execution and delivery of the bond sued on, the sheriff demanded a new bond in place of the one sued on, and such new bond was executed and delivered to him in lieu of the one sued on, the plaintiff cannot recover on the bond sued.

4. If the court, sitting as a jury, shall believe from the evidence that the bond sued on was executed and delivered to the sheriff before a claim was made by the claimant in writing verified by affidavit, the finding should be for the defendants.

5. If the court, sitting as a jury, shall believe from the allegation of the plaintiff in the pleadings, or the evidence, that Goddard, to whose use this suit is brought, sued and recovered against the sheriff of St. Louis county and others for the seizure and sale of the same goods sought to be recovered for in this suit, then the finding should be for the defendants.

6. The court, sitting as a jury, will exclude from consideration, under the pleadings in this case, all evidence in regard to the value of the goods sought to be recovered for.

7. If the court, sitting as a jury, believe from the evidence that the bond sued on, after execution and delivery to the sheriff for his protection, was by him or his deputy altered or changed by changing the name of the claimant from “Francis” to “Franklin,” then said bond is not legal against defendants, and should be excluded.M. L. Gray, for appellants.

Defendant's fifth instruction should have been given. If the bond was insufficient to protect the sheriff, and Goddard elected to repudiate the bond and to sue, and did sue and recover of the sheriff, that election of remedies bars him from suing on this bond. The remedies are not cumulative, but alternative and inconsistent. He could not hold the sheriff except by averring and proving the invalidity of the bond; and having averred and proved the invalidity of the bond, he could not then take the inconsistent position of asserting the validity of the bond.

By suing Clark, Cochran and Castello, sheriff Goddard repudiated the bond. This bars him of the right to afterwards sue on the bond. If he repudiates the bond in part, he repudiates it altogether--4 Mich. 508, 511; 5 Metc. 49; 1 Denio, 69; 2 Smith's Lea. Cas. 81, 87; Morris v. Roxford, 18 N. Y. 553; 33 Penn. 256; 36 N. H. 449; 14 Me. 364; 4 T. R. 211.

G. P. Strong, for appellant.

The alterations in the bond, if any were made, were both immaterial, and were made, if made at all, after the signing of the bond in furtherance of the intention of the parties who signed the bond as obligors and with their implied assent. Such alterations do not invalidate the bond--2 Pars. on Cont. (5 ed.) 719, n. e et seq.; Texira v. Evans, cited by J. Wilson in 1 Anst. 228; Stahl v. Berger, 10 Serg. & R. 170-2; Wiley v. Moore, 19 Id. 438-40; Ogle v. Graham, 2 Penn. 132-4; Wooley v. Constant, 4 J. R. 54, 59, 60; Ex parte Kirwin, 8 Cow. 118; Henfro v. Bromlee, 6 East, 309; Boyd v. Brotherton, 10 Wend. 93; Nichols v. Johnson, 10 Conn. 192, 197; Smith v. Crocker, 5 Mass. 538; 1 Smith's Lea Cas. 817, notes.

HOLMES, Judge, delivered the opinion of the court.

The suit is upon a bond taken by the sheriff upon a claim made under the statute for certain...