State ex rel. Howell County v. Findley
| Decision Date | 30 June 1890 |
| Citation | 14 S.W. 111,101 Mo. 368 |
| Parties | The State ex rel. Howell County, Appellant, v. Findley et al |
| Court | Missouri Supreme Court |
Appeal from Texas Circuit Court. -- Hon. C. C. Bland, Judge.
Affirmed.
L. B Woodside and Livingston & Pitts for appellant.
(1) The court erred in sustaining the demurrer to the evidence. (2) The change in the bond was not made by the county court, nor by its direction, and this case does not fall within the general rule governing alteration of written instruments. First. An agreement between the principal and surety that the bond shall not be delivered unless another person shall be bound as cosurety will not relieve the surety from liability on the bond, and no agreement between them will affect the surety's liability unless known to the obligee. State to use v. Potter, 63 Mo. 212; State ex rel. v Modrel, 69 Mo. 152; Wolfe v. Schaeffer, 4 Mo.App. 367. Second. The surety will not be discharged from liability by the fact that the name of a cosurety, on the faith of which his signature was procured, was a forgery. State ex rel. v. Baker, 64 Mo. 167; State ex rel. v. Hewitt, 72 Mo. 603. Third. The rule laid down by the supreme court of Arkansas, in State v Churchill, 3 S.W. 352, is not in harmony with the cases above cited, is not founded upon good reason, and should not, in our judgment, be followed in this state. Fourth. When the defendants executed the bond and placed it in the hands of the principal for completion and delivery, they thereby made the principal their agent, and it was their duty to see that the bond was filed in accordance with their agreement, if any, as to who should be sureties thereon. Carroll v. Ruggles, 69 Iowa 269. Fifth. The court ought not to be required to compel the attendance of sureties to an official bond to ascertain whether their names are affixed with conditions, or whether it is presented as the sureties understood it would be. Sixth. An erasure or change in the bond after approval would be a mere spoliation and no defense to an action. Harrison v. Turbiville, 2 Hump. (Tenn.) 242. Seventh. If the change is made before approval it will be presumed to have been done by the consent of all parties thereto, and unless the body charged with the approval and acceptance of the bond have actual notice that an alteration had been made, and that, without the consent of the sureties, it cannot be urged as a defense to an action on the bond. State v. Potter, 63 Mo. 212; State v. Baker, 64 Mo. 167; Carroll v. Ruggles, 69 Iowa 269; School Trustees v. Shirk, 119 Ill. 589; Huntingdon v. Finck, 11 Conn. 531. (3) Gully was a member of the county court at the time he signed the bond, which fact was known to the defendants and he was forbidden by law to become a surety on any official bond. R. S. 1879, sec. 3917. (4) If the erasure of Gully's name from the bond affected the liability of the defendants in any way it should only go to the extent of discharging them from the pro rata share for which Gully would have been liable. Dodd v. Winn, 27 Mo. 501; State v. Atherton, 40 Mo. 209.
J. H. Maxey for respondents.
-- This action was begun in the circuit court of Howell county, Missouri, but the venue was changed to Texas county, where the case was tried. The suit is against defendant Samuel Findley on his official bond, as collector of the revenues of Howell county for the years 1883 and 1884, and against defendants, Reid and Summers, as sureties on said bond. The defense of the sureties is non est factum. The court, at the close of the evidence, in plaintiff's behalf, gave the instruction in the nature of a demurrer to the evidence, and entered judgment in favor of said sureties Reid and Summers. The material facts, necessary to be set out in the first instance, are about as follows:
At the March term, 1883, of the county court of Howell county the bond of the collector was produced and approval thereof asked, but the county court refused to approve the same, because one of the sureties therein, viz.: P. W. Gully, was a member of the county court, and then present when the bond was offered. R. S. 1879, sec. 3917. The presiding judge handed the bond back to the collector, telling him to get another name in place of Judge Gully's. Mr. Findley, the collector, says that Judge Dryer first scratched the name of Gully from the bond, and that the county clerk then scratched it over. But it seems, from the other evidence, that the clerk of said court, or the principal in the bond, one or both, scratched the name of Gully from the bond, the judges, or some of them, being present in the clerk's office at the time, and, thereupon, one M. A. Cooper signed his name in the place, or places, where said Gully's name had formerly been on the bond. The bond, so altered, was offered in court on the next morning with Gully's name off and Cooper's name inserted opposite the same seal and in the same place, and the court thereupon approved the bond.
The evidence further is that said Gully was solvent when his name was erased, and at the date of the trial and that said sureties, Reid and Summers, were not present in the county court upon either of said days, and that the insertion of Cooper's name, and the erasure of Gully's (whose name was on the bond when signed by Reid and Summers), was without their knowledge or consent in point of fact. This statement of facts will suffice for the present.
Since the briefs of counsel have been prepared and filed in this case, we have had occasion in the case of State v. McGonigle, ante, p. 353, to examine the principal points, and authorities relied on, in the case at bar. S.W. Rep., June 16, 1890, 758. We content ourselves with a reference, in this behalf, to the discussion there had, both as to the principal questions now raised, and the purport and bearing of these leading cases, to which we are again cited in the able and interesting briefs before us. The McGonigle case, supra, and the present one are very much alike, in important features. In both cases, the name of a solvent surety was erased from the bond, and the name of another substituted in lieu thereof, upon the direction of the judges, but without the knowledge or consent of the defendant sureties. In the McGonigle case, the name of the surety Dailing was, upon his own motion, erased by the clerk in the presence of the judges and the collector, or principal in the bond, but, as stated, without the knowledge or consent of the cosureties. In one or two days afterwards, Reid, the principal, again presented the bond to the court for approval with the name of one Cain assigned to the line and at the place from which Dailing's name had been erased, and the court then approved the bond.
We have already stated the facts in this behalf in the case now up for decision. In both cases the alteration in the bond and action of the court in the premises was the same, though taken upon different grounds. This case, upon the facts so far as found and stated, clearly falls within the rule laid down in our said former decision. The judges of the county court, it is true, ought not to have accepted one of their number as a surety on the official bond of the collector, as the statute forbids them from so doing, but statutes of this sort are regarded as directory merely, and as not designed to avoid the bonds where the statute has been disregarded. Hicks v. Chouteau, 12 Mo. 341; Wallace v. Scoles, 6 Ohio 429; Sherman v. State, 4 Kan. 570; Kohn v. Washer, 69 Tex. 67, 6 S.W. 551; Holandsworth v. Commonwealth, 74 Ky. 617, 11 Bush. (Ky.) 617. Nor ought the judges in McGonigle's case to have accepted said Dailing as a surety after he disclosed the conditions under which he signed, and demanded his release before the delivery of the bond. The action of the judges was so far lawful and proper in both cases. It is their action upon the bond when presented the second time, in approving the same, with full knowledge that the alteration and erasure in the bond had been made without the knowledge or consent of the sureties, that operates to discharge them.
In this case, as in that, it is claimed that the defendant sureties by executing the bond and placing it in the hands of the principal to get other names and to deliver the bond thereby made him their agent, and are bound by his acts. The discussion of this point in the McGonigle case covers the same point in this case, and need not be repeated. The learned counsel will see that the decision there meets most of the questions raised by them in this behalf, involving the rights of parties growing out of alterations and erasures of instruments of this sort.
A point not passed upon, or raised in that case, is raised in this case, in effect, that the erasure of Gully's name, at most, only operated to discharge these sureties to the extent of the pro rata share for which Gully would have been liable. But the surety stands, and has a right to stand upon the exact terms of his contract, and a material alteration of this sort makes...
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