State ex rel. Moore v. Sandusky

• Citation: 46 Mo. 377
• Parties: STATE OF MISSOURI ex rel. W. W. C. MOORE, BY GUARDIAN, ETC., Respondent, v. SAMUEL D. SANDUSKY et al., Appellants.
• Decision Date: 31 August 1870
• Court: United States State Supreme Court of Missouri

46 Mo. 377

STATE OF MISSOURI ex rel. W. W. C. MOORE, BY GUARDIAN, ETC., Respondent,

v.SAMUEL D. SANDUSKY et al., Appellants.

Supreme Court of Missouri.

August Term, 1870.

Appeal from Fourth District Court.

Burgess, for appellants.

The judgment is excessive. In no case could it have been rendered against the securities for more than the amount of the penalty in the bond. (Gen. Stat. 1865, p. 605, §§ 8-10; id. 607, § 28; Farrar & Brown v. United States, 5 Pet. 372; People v. Sumner, 16 Ill. 174; Robinson v. County Commissioners, 5 Gilm. 559; Skinner et al. v. Phillips, Sheriff, 4 Mass. 68; Sedgw. Meas. Dam. 425; Fairly v. Lawson, 5 Cow. 424.) The release of the principal, Carter, and one of the securities, Hoyle, operated as a discharge of all the securities. (State, to use of Midgett, v. Matson, Adm'r of Mills, 44 Mo. 305; Routon's Adm'r v. Lacy, 17 Mo. 399; Dodd v. Winn, 27 Mo. 501; see also 22 Ind. 405; 4 Watts, 21; 17 Mass. 605; 11 Metc. 35, 36; 2 Am. Law Reg. 34; 7 Am. Law Reg. 93; 2 Gray, 557; 2 Pick. 26; 9 Wheat. 702; 32 N. Y. 448; 24 Ind. 484-6; Wells v. Dill, 1 Martin, 592; Pauling v. United States, 2 Cranch, 219.)

Geo. W. Easley, for respondent.

I. The breach of the bond in this case made the penalty a debt, which the surety could at once have discharged by payment; but as payment was not then made, the surety is held for interest from the time of the breach. (Carter v. Thorn et al., 18 B. Monr., Ky., 613; Carter v. Carter, 4 Day, Conn., 30; Brainard v. Jones, 18 N. Y. 25; Harris v. Clapp, 1 Mass. 308; Burr v. Wilcox, 22 N. Y. 557; Huntington v. Mott, 1 Root, Conn., 423; Graham v. Bickham, 4 Dallas, Penn., 149; Hughes v. Wickliff, 11 B. Monr., Ky., 202; United States v. Arnold, 1 Gallison, 348, affirmed in 9 Cranch, 108; Maryland v. Wyman, 2 Gill & Johns. 254-79.)

II. This court will not review the discretionary power of the Circuit Court in allowing the amendment in the caption of the petition, especially when it is not made to appear that the appellants were injured thereby.

III. There being no condition or reservation on the part of Halliburton in the execution of the bond, and no fraud practiced on him, he is bound, although he may have expected Grill to sign the bond. (4 Shepley, Me., 140; 10 Mass. 442; 5 Greenl., Me., 336; 4 Cranch, 210.)

WAGNER, Judge, delivered the opinion of the court.

The objections urged to the sufficiency of the petition will not be particularly noticed here. That the second amended petition on which the cause was tried was inartistic and artificial is undoubted, but it was substantially good after verdict, and unless some error in the ruling of the court below, involving the merits, appears, the judgment will not be disturbed. The action of the court in allowing an amendment to the caption of the petition after the evidence was in, was a matter resting very much within its sound discretion, and we should have to see that it operated clearly to the prejudice of the appellants before we would reverse on that ground. The amendment only made the petition conform to the facts adduced in proof; and as to whether any terms should have been imposed was primarily in the discretion of the trial court, and we will not interfere unless abuse is apparent.

There are two questions presented in the record for our determination: first, whether Halliburton was bound on the bond; and, second, whether the court erred in giving damages beyond the amount of the penalty.

The action was commenced on an official bond against Carter as principal, and Sandusky, Hoyle and Halliburton as securities. The bond was for the penal sum of four thousand dollars, and conditioned that Carter should faithfully perform his duty as guardian and curator, etc. In the body of the bond the name of Carter was inserted as principal, and Sandusky, Grill, Hoyle and Halliburton as securities. The bond was signed by Carter, Sandusky, Hoyle and Halliburton, the name of Grill not appearing. It is now contended that because Grill did not sign the bond it is void as to the other securities; that his name appearing in the writing amounted to an undertaking that he should sign it as one of the securities, and that his failure to do so vitiated it and released the other securities.

This is a question upon which the authorities are greatly in conflict, respectable courts having decided in directly opposite ways.

It would subserve no useful purpose to go into a general review of the cases, as it is almost impossible to harmonize or to extract any very general or satisfactory rule from them. We think that the best and most intelligible principle is, that where a writing obligatory is prepared to be signed by several and is not signed by all, whether it is the act of those who do sign it depends upon the question whether it was signed and delivered as an escrow only until signed by the others, or was delivered as the writing of the parties signing. It seems to me that about the best rule was laid down by the Supreme Court of Massachusetts in Cutter v. Whittemore, 10 Mass. 442. There the bond was written to be executed by three parties, and it was executed but by two of them. Jackson, J., in delivering the opinion of the court, said: “If there had been any agreement or condition at the time, that it should not be delivered as their deed unless the third person named as obligor should also execute it, this would show that it was delivered as an escrow.” In the absence of such evidence it was decided to be binding upon those who did execute it.

Assuming this to be the correct doctrine, Halliburton, who is the only party appealing in this case, is not in a situation to complain. The only real defense which he interposed was a denial of his signature to the bond, which is clearly disproved by the record. There is no averment in his answer that the bond was delivered as an escrow, or that there was an agreement that it should not be valid and binding as to him until the signature of Grill should be procured. And had such a defense been set up, there is not a shadow of evidence to sustain it. This point must therefore be ruled against the appellant.

The next question relates to the action of the court in assessing damages. The petition was defective in not asking for judgment for the penalty of the bond and assessment of damages for the injury sustained; but advantage was...