Trs. of Sch. v. Scheick
| Decision Date | 05 October 1886 |
| Parties | TRUSTEES OF SCHOOLS, TOWN 35, R. W., WILL CO., v. SCHEICK. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeal from appellate court, Second district.
Where a bond is required, and the form is prescribed by statute, and the bond is voluntary, if the exact statutory form is not followed the bond is still obligatory. Pritchett v. People, 1 Gilman, 525;Fournier v. Faggott, 3 Scam. 347;Ballingall v. Carpenter, 4 Scam. 306.
If not good as a statutory bond, it is still binding as a common-law obligation. Todd v. Cowell, 14 Ill. 72;Coons v. People, 76 Ill. 383;Richardson v. People, 85 Ill. 495;Board of Education v. Fonda, 77 N. Y. 350.
The surety is none the less bound because the one whose name is in the body of the bond, but who did not sign, would have been the principal. Loew v. Stocker, 68 Pa. St. 226; State v. Bowman, 10 Ohio, 445;Miller v. Tunis, 10 U. C. 423; Williams v. Marshall, 42 Barb. 524;Herrick v. Johnson, 11 Metc. 34; Adams v. Bean, 12 Mass. 139;Parker v. Bradley, 2 Hill, 584;Wild Cat Branch v. Ball, 45 Ind. 213; Com. Dig. tit. ‘Bail,’ 92.
The name of the principal in the body of the bond was not notice to the obligees that he was to sign it before it should become obligatory; it was but evidence of notice. Smith v. Supervisors, etc., 59 Ill. 414.
The liability of sureties is to be strictly construed, and, in cases of doubt, the doubt is to be solved in their favor. Stull v. Hance, 62 Ill. 55;Chilton v. People, 66 Ill. 501;Ovington v. Smith, 78 Ill. 250;Trustees v. Otis, 85 Ill. 181;Cooper v. People, Id. 417; Miller v. Stewart, 9 Wheat. 702;Martin v. Thomas, 24 How. 315.
Execution by the principal is essential to the validity of a bond naming him as such, unless it is clearly proved that those signing expressly consented to be bound without him, if indeed that will make the bond effective. Poth. Obl. pt. 2, c. 6, § 1, *365; Theob. Sur. 1, 2, (1 Law Lib.;) Curtis v. Moss, 2 Rob. (La.) 367; Ferry v. Burchard, 21 Conn. 602;Martin v. Thomas, 24 How. 315;Bean v. Parker, 17 Mass. 603, 604;Wood v. Washburn, 2 Pick. 24;Russell v. Annable, 109 Mass. 72;Bunn v. Jetmore, 10 Cent. Law J. 137;Hall v. Parker, 37 Mich. 590;Johnston v. Kimball Tp., 39 Mich. 187;Knight v. Hurlbut, 74 Ill. 133;Wild Cat Branch v. Ball, 45 Ind. 213.
James Frake and B. W. Ellis, for appellants, Trustees of Schools, Town 35, R. W., Will Co.
Hill & Dibbell and Haley & O'Donnell, for appellees.
This was an action of debt brought by the board of school trustees against the appellees upon the bond of Phillip Reitz, a defaulting school treasurer. In the circuit court the plaintiffs recovered a judgment, but on appeal the appellate court reversed the judgment, and decided that no action could be maintained on the bond against the trustees, and under this ruling no remanding order was entered. The bond was never executed by Phillip Reitz, the principal, although his name was inserted in the condition and obligatory part of the instrument. It was properly executed by appellees as sureties, and was accepted and approved by the board of school trustees.
Much reliance seems to be placed, in the argument, upon the finding of facts as incorporated in the judgment of the appellate court; it being claimed that the court found that appellees signed the bond upon the condition that it should not be delivered until it had been executed by the principal. We do not so understand the finding. The circuit court has found the facts, and recited in the record what that finding was, and this seems to have been adopted and sanctioned by the appellate court. Upon an examination of the finding of the circuit court it will be seen that the court found from the evidence that Reitz promised the sureties that he would sign the bond before it was delivered. This, however, does not constitute the execution of a bond upon condition that it should not be delivered unless executed by the principal. Indeed, the sureties seemed to rely upon the promise of Reitz, and not upon a conditional delivery, as is apparent from the finding of facts by the circuit court, and from the decided weight of evidence.
It is also said that the liability of appellees should be construed strictly. The general rule is that the undertaking of a surety is to be construed strictly. He is only bound in the manner and to the extent set forth in the obligation executed by him. Cooper v. People, 85 Ill. 417. But, adhering to this rule to its ultimate limit, are the sureties liable on the obligation which they executed? The statute required this bond to be executed and delivered to the trustees, for the purpose of keeping secure the public funds, and for the purpose of guarding against a public loss. In view of this fact, while we regard it proper to adhere to the rule of law indicated above, still a surety who has incurred an obligation of this character should not be allowed to escape liability upon a mere technical defect in the obligation he may have executed, which does not go to the substance of his undertaking. Keeping this principle in view, we will examine the principal objections urged against the validity of the bond upon which the action is predicated.
It is claimed that where the name of an intended co-obligor appears upon the face of a bond, who has not executed it, the instrument is imperfect and not binding. The decisions of the courts of the different states are not harmonious in regard to the binding effect of a bond upon the rights of sureties, where the bond has not been executed by the principal. In Bean v. Parker, 17 Mass. 603, where an action was brought against the sureties on a bail-bond which had not been executed by the principal, the court held that no action could be maintained. It is there said: ‘We think it essential to a bail-bond that the party arrested should be a principal; it is recited that he is; and the instrument is incomplete and void without his signature.’ In a later case, (Russell v. Annable, 109 Mass. 72,) where the principals on a bond constituted a firm, and the firm name was signed by one of the partners, the court held that the surety was not bound, unless it appeared that the partner who signed the firm name had authority from his partner to do so. In Wood v. Washburn, 2 Pick. 24, an administrator's bond not executed by the administrator was held not to be binding on the surety. In Ferry v. Burchard, 21 Conn. 602, a similar question arose, and the court held that a contract of a surety was of such a nature that there could be no obligation on his part unless the principal was also bound. In Bunn v. Jetmore, 70 Mo. 228, a late case, and one, too, quite similar to the one before us, the sureties on a con stable's bond were held not liable for a default of the constable, upon the sole ground that the bond had not been executed by the principal. There are other cases holding a like view, and there are others which hold that the sureties may be held liable although the principal did not execute the instrument. State v. Bowman, 10 Ohio, 445, was an action on a treasurer's bond. The principal's name was in the body of the bond, but he did not sign the instrument. The sureties defended on the ground that the principal had not signed it, but the court held that they were bound. Loew v. Stocker, 68 Pa. St. 226, was an action against sureties on a bond of indemnity. The principal's name had been signed without authority. On the decision of the case it was said: ‘Had the bond not been executed at all by the principal, though his name was mentionedas one of the obligors in the body of the instrument, it is clear that the surety could not avail himself of this fact as a defense.’ Herrick v. Johnson, 11 Metc. 34; Keyser v. Keen, 17 Pa. St. 330; Haskins v. Lombard, 16 Me. 142;Grim v. School Com'rs, 51 Pa. St. 219; Williams v. Marshall, 42 Barb. 524;Miller v. Tunis, 10 U. S. 423,-announce a similar rule. The supreme court of Michigan does not seem inclined to adopt the rule established in either class of cases cited above, but seem disposed to adopt a medium ground. Johnston v. Township of Kimball, 39 Mich. 187, is a case in its facts quite similar to the one under consideration. There, as here, the suit was against the sureties on the official bond of a defaulting...
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