University of Illinois v. Hayes

• Citation: 87 N.W. 664,114 Iowa 690
• Parties: UNIVERSITY OF ILLINOIS et al., Appellants, v. JOHN HAYES
• Decision Date: 17 October 1901
• Court: Iowa Supreme Court

87 N.W. 664

114 Iowa 690

UNIVERSITY OF ILLINOIS et al., Appellants, v. JOHN HAYES

Supreme Court of Iowa, Des Moines

October 17, 1901

Appeal from Montgomery District Court.--HON. A. B. THORNELL, Judge.

ACTION at law upon a bond to recover for a breach thereof. There was a jury trial, resulting in a verdict and judgment for defendant. Plaintiffs appeal.

Reversed.

C. E Richards, P. W. Richards and N. G. Moore for appellants.

Ralph Pringle and J. M. Junkin for appellee.

OPINION

WATERMAN, J.

The record discloses without material conflict that the bond in suit was given by Charles W. Spaulding, as treasurer of plaintiff university, to secure it for moneys and property which should come into his hands in virtue of his office. The bond was duly accepted by the obligee. Defendant, Hayes, was one of the sureties thereon. There was a breach of the conditions of such obligation, and this action is founded upon such breach. The only matters we have to consider are relative to a special defense set up, in which it is alleged the bond was altered after it was signed by the defendant, and without his knowledge or consent, by erasing the signature of one surety, and substituting the name of another person in its stead. The jury returned a general verdict in defendant's favor, and also made certain special findings, and the main contention on appellants' part is that the evidence does not support the verdict. The interrogatories submitted to the jury, with the answers returned by them, to which exceptions were taken are as follows: "Interrogatory 1. Assuming that it appears from an inspection of the bond offered in evidence that some writing, afterward erased, was on the line whereon Alison W. Harlan's name now appears among the names of the sureties now attached to said bond, was that writing the name of another person not now a party to said bond? A. Yes. Interrogatory 2. Did that writing remain there unerased at the time the defendant, John Hayes, signed said bond as a surety? A. Yes. Interrogatory 3. If you answer to said (1) interrogatory that the writing so erased was the name of some one not now a party to said bond, then answer whether said name so erased was the name of an actual, existing person capable of being identified and becoming a surety. A. Yes." "Interrogatory 5." If you have answered that there was such a name erased, and that it was the name of an actual existing person not now a party to said bond, and that the trustees and officers of the University of Illinois had no actual knowledge thereof, then answer whether you find that said erasure and the nature of the matter erased were so apparent when said bond was so delivered that a reasonably prudent person receiving the same from the principal thereof would, upon inspection of the paper, and without other knowledge on the subject, have been led to inquire whether or not the name of the person not a party to the bond, had been attached thereto, and afterwards erased, without the knowledge and consent of the defendant, John Hayes. A. Yes." "Interrogatory 6. If the trustees or officers of the University of Illinois, upon receiving said bond, had inquired whether or not the name of some actual existing person capable of being a surety had executed said bond as a surety before the defendant signed the same, and whether or not the name of such person had been erased therefrom, and whether or not the same was done with the knowledge or consent of the other sureties thereon, do you find from the evidence that they would have obtained such knowledge. A. Yes." On the matter of the alteration of the bond the trial court instructed the jury as follows: "To make out this defense, the defendant must show all the foregoing matters by the evidence. First. That at the time defendant, Hayes, signed the bond in question, that some person, not now a party to said bond, had signed his name as surety on said bond in the place where the name of Alison W. Harlan now appears, and that said person's name was on the bond at the time John Hayes signed the bond. Second. That after John Hayes signed the bond that the name of the surety who had thus signed said bond in the place where the name of Alison W. Harlan now appears was erased, without the knowledge and consent of the defendant, John Hayes. Third. That the trustees of the university, when they received said bond, knew that said name had been erased from said bond, or that, when said bond was received by said trustees, the appearance of said bond was such that a reasonably prudent person receiving same would, on inspection of the bond, have been led to inquire whether or...