State v. Findley

• Decision Date: 30 June 1890
• Citation: 101 Mo. 368,14 S.W. 111
• Parties: STATE ex rel. HOWELL COUNTY v. FINDLEY et al.
• Court: Missouri Supreme Court

14 S.W. 111

101 Mo. 368

STATE ex rel. HOWELL COUNTY v. FINDLEY et al.

Supreme Court of Missouri.

June 30, 1890.

OFFICIAL BOND — ALTERATION — RELEASE OF SURETY — ESTOPPEL.

1. The erasure from the bond of a county collector of the signature of a solvent surety, who is one of the judges of the county court, which has for that reason refused approval, made either by the clerk of the court or by the collector, in the presence of some of the judges, discharges other sureties who signed after the one whose name is erased, and do not consent to the alteration, the bond being approved with a new signature opposite the same seal and in the same place.

2. By the erasure of the signature of a solvent surety from a bond, others who signed after him, and do not consent, are wholly discharged, and not to the extent only to which they could otherwise have compelled contribution.

3. To raise an estoppel against a surety discharged by an alteration of the bond the burden is upon the obligee to prove it was known to him.

Appeal from circuit court, Texas county; C. C. BLAND, Judge.

L. B. Woodside and Livingston & Pitts, for appellant. James H. Moxey, for respondents.

RAY, C. J.

This action was begun in the circuit court of Howell county, Mo., 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 Reed & 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 demurrer to the evidence, and entered judgment in favor of said sureties Reed & 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. See section 3917, Rev. St. 1879. 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 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 Reed & 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 Reed & 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, 13 S. W. Rep. 758, (May 19, 1890,) recently decided, and not yet officially reported, to examine the principal points and authorities relied on in the case at bar. 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 co-sureties. In one or two days afterwards Reid, the principal, again presented the bond to the court for approval, with the name of one Cain signed 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, 6 S. W. Rep. 551; Holandsworth v. Com., 11 Bush, 617. Nor ought the judges in McGonigle's case to have accepted said Dailing as a surety after he disclosed the conditions under which be 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...