State v. McGonigle

• Decision Date: 19 May 1890
• Citation: 13 S.W. 758,101 Mo. 353
• Parties: STATE v. McGONIGLE et al.
• Court: Missouri Supreme Court

13 S.W. 758

101 Mo. 353

STATE v. McGONIGLE et al.

Supreme Court of Missouri.

May 19, 1890.

PRINCIPAL AND SURETY — DISCHARGE OF SURETY — ESTOPPEL — PAROL EVIDENCE.

1. An acceptance of the bond of a tax collector by the county court, knowing that the name of a responsible surety has been erased therefrom, and that of another substituted, without the knowledge or consent of the other sureties, will discharge them from their obligation.

2. The fact that the sureties left the bond with the principal to procure other sureties, and to present it to the county court for approval and acceptance, does not give him the implied power to discharge one who thereafter becomes a party to the instrument; nor does knowledge by the sureties of its approval give rise to an inference that they authorized the alteration.

3. The substituted surety having signed the bond without knowledge of its alteration, and under the supposition that the other signers were his co-sureties, the bond is also void as to him, as he never undertook to become the sole surety.

4. Though the erasure may have been at the instance of the county court, a stranger to the bond, the doctrine that an alteration of a written instrument by a stranger will not affect the liability of any of the parties can have no application, as the erasure was made before the acceptance of the bond, and as the surety whose name was erased consequently never became liable thereon.

5. The fact that the sureties on the bond as finally approved knew of the approval, and made no objection to the principal's performing the duties of his office for two years thereafter, does not estop them from setting up the alteration, of which they had no knowledge, as a defense in an action on the bond.

6. In approving official bonds the county court acts in a ministerial capacity; and, though it is required to keep a record of its proceedings, parol evidence of what was said and done when it approved the bond is admissible to show that it had knowledge of the fact that the name of one of the sureties had been erased therefrom without the knowledge or consent of his co-sureties.

SHERWOOD and BARCLAY, JJ., dissenting.

Appeal from circuit court, Knox county; BEN E. TURNER, Judge.

Action by the state against William P. McGonigle, administrator of Peter H. Early, deceased, Patrick Flemming, Jefferson D. McPike, Thomas Bresnen, John Cain, and Thomas Kearnes, as sureties on the official bond of Peter J. Reid, tax collector. There was a judgment for defendants, and the state appeals.

John M. Wood, Atty. Gen., O. D. Jones, and L. F. Cottey, for appellant. Blair & Marchand and G. R. Bathrope, for respondents.

BLACK, J.

The state, as plaintiff, brought this suit against the sureties on the official bond of Peter J. Reid, who was elected collector of Knox county in November, 1884. Reid seems to have paid over the county revenues collected by him, but he made default to the state in the amount of $14,092, and hence this suit. The case was tried by the court without a jury; the trial resulting in a judgment for the defendants, to reverse which the state prosecutes this appeal. Many matters of defense were set up in the answer filed by the defendants, and evidence was received in support of them; but the court at the close of the trial excluded the evidence bearing upon these defenses, except that offered in support of that part of the answer which, in effect, states that the bond sued upon is not the obligation of the defendants. This is, therefore, the only defense before us on this appeal.

In August, 1885, Reid presented to the county court of Knox county a bond, in the penal sum of $30,000, for approval, signed by himself and the following sureties, in the following order: P. H. Early, Patrick Flemming, I. D. McPike, Thomas Bresnen, George Dailing, and Thomas Kearnes. At the same time, Dailing, one of the sureties, appeared before the court, which was then in session, and asked that his name be taken off the bond, assigning as a reason therefor that he signed upon the understanding that James Kelly would also sign, and that Kelly's name had not been procured. The matter was talked over in the presence of the court, and the name of Dailing was erased by the clerk in the presence of all of the judges, and of Dailing and of Reid, but in the absence of, and without the knowledge or consent of, any of the other sureties. Some of the evidence is to the effect that the erasure was made by the clerk at the instance of the court, the other parties present consenting. The presiding justice then told Reid he must procure other sureties. Thereupon Reid took the bond, and in one or two days again presented it to the court, with the name of John Cain signed on the line, and at the place from which Dailing's name had been erased. The court then approved the bond by an order dated the 4th August, 1885. Cain, who signed by making his mark, did not know that Dailing had ever been a party to the instrument. The other sureties signed at different dates, and at the office of Reid. Nothing is said about any erasure in the body of the bond, and the inference is that the names of the sureties had not been inserted at that place when the bond was first presented for approval. Dailing was a substantial property owner, while Cain appears to have been in debt to the amount of the full value of all of his property. The defendants asked no instructions. The state asked one only on this branch of the case, to the effect that the evidence concerning the erasure of the name of Dailing constituted no defense, which the court refused. The plaintiff is, therefore, here standing on a demurrer to the evidence of the defendants.

1. The state places much reliance upon the proposition that the circuit court should have excluded all of the parol evidence of what was said and done in the presence of the judges of the county court. This contention is based upon the ground that the acts of the county court can be shown alone by the record. These courts are required to keep a just and faithful record of their proceedings, and must speak by and through the record. The county courts, however, in approving these official bonds, act in a ministerial, and not a judicial, capacity. State v. County Court, 41 Mo. 221; State v. County Court, Id. 248; In re Thompson, 45 Mo. 55. They are made the agents of the state and counties for the purpose of accepting such bonds. The parol evidence was not offered in this case for the purpose of showing any order or judgment of the court, but for the purpose of showing that the court had full notice and knowledge of the fact that the name of one of the sureties had been erased, and that, too, without the knowledge or consent of the other sureties. For this purpose the evidence was properly received. Notice to the court, when thus acting in a ministerial capacity, may be shown by evidence which would be sufficient in case of other agents. It is not to be expected that all the information which the court may have while transacting such business will be spread upon the record. The law does not require it.

2. The plaintiff cites, and with confidence relies upon, a line of authorities, of which State v. Potter, 63 Mo. 212, is the leading one in this court. That was a suit on the bond of Turley, as guardian of certain minors, with Potter and another as sureties. Potter's defense was that he signed the bond on the condition that it would be signed by one Bothrick as surety, and that it was filed by Turley without having procured the signature of Bothrick. Says the court: "Here the surety who defends this action had invested the principal with an apparent authority to deliver the bond; and there was nothing on the face of the bond, or in any of the attending circumstances, to apprise the official who accepted it that there was any secret agreement which should preclude the acceptance of the bond." The defense was accordingly overruled, and the doctrine of that case overruling former cases has been followed in subsequent cases. State v. Baker, 64 Mo. 167; State v. Modrel, 69 Mo. 152; State v. Hewitt, 72 Mo. 604; Wolff v. Schaeffer, 74 Mo. 154. It is now well established law in this and other jurisdictions that, where a surety signs a bond, and leaves it in the hands of the principal to be delivered only upon the condition that it is signed by another person, and the principal delivers the bond to the obligee without complying with the condition, and the obligee takes it without notice of the conditional agreement, the surety will be bound. Dair v. U. S., 16 Wall. 1; State v. Peck, 53 Me. 284; Taylor Co. v. King, 73 Iowa, 153, 34 N. W. Rep. 774; State v. Pepper, 31 Ind. 76; Millett v. Parker, 2 Metc. (Ky.) 608. The same rule applies where the surety signs a bond leaving a blank space for the penalty, and the principal fills it with a larger amount than that agreed upon by the principal and surety. Butler v. U. S., 21 Wall. 274. In these cases of conditional agreements, it is the surety who puts trust and confidence in the principal, and not the obligee, and, if any one is to be the loser, it should be the surety; for he puts it in the power of the principal to create the mischief complained of. The bond having been...