Valentine v. Wheeler

• Decision Date: 09 January 1875
• Citation: 116 Mass. 478
• Parties: Charles H. Valentine v. John Wheeler
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

116 Mass. 478

Charles H. Valentine v. John Wheeler

Supreme Court of Massachusetts

January 9, 1875

Argued September 29, 1874 [Syllabus Material]

Worcester. Contract upon a joint and several bond in the sum of $ 40,000 alleged to have been executed by John P. Wheeler, as principal and the defendant and Edward H. Valentine, as sureties, the condition of which was that John P. Wheeler should pay all demands, acceptances, or indorsements and obligations for which Charles H. Valentine is in anywise responsible for or on account of the firm of John P. Wheeler & Co., and hold and save said Valentine harmless and free from loss or inconvenience on account of any debt, claim demand or liability of the firm of said John P. Wheeler &amp Co. Answer: A general denial.

At the trial in the Superior Court, before Allen J., the defendant admitted his signature to the bond, and the plaintiff then offered the bond in evidence, without any proof of its execution by John P. Wheeler, the alleged principal. The defendant objected to the admission of the bond in evidence but the judge admitted it.

The plaintiff then called George M. Chapman, who testified in substance as follows: "I knew of John P. Wheeler buying of Isaac L. Hunt, in 1859, about $ 2000 worth of goods." (Two drafts were shown the witness, one dated February 10, 1859, for $ 1074.74, and the other dated February 24, 1859, for $ 1074.75, both payable six months after date, and drawn on Charles H. Valentine, and purporting to be signed by John P. Wheeler & Co., and accepted by said Valentine.) "John P. Wheeler said he drew them. I was at my desk when I saw the drafts. It was after the purchase of the goods. Wheeler, Valentine, Hunt and a clerk were present. Hunt indorsed them. I think they were signed and accepted at my desk. They were accepted and indorsed at my desk, with my ink. I think I saw them accepted. I lent money to Hunt on the drafts. They were delivered to me, and were duly protested. I have had control of the acceptances ever since. Prior to August 31, 1860, Isaac L. Hunt assigned his property and effects to Samuel I. Hunt, in trust, for the benefit of his creditors under the laws of the State of New York. In September, 1860, I directed a suit to be brought against C. H. Valentine in the Supreme Court for the county of New York, in the name of Samuel I. Hunt, on said drafts, and obtained judgment." (A copy of the record of judgment was here put in, showing a judgment in said court on September 21, 1860, for $ 1862.25, against Valentine, in favor of Samuel I. Hunt, assignee of Isaac L. Hunt.) "Valentine assigned the bond in suit to me on February 18, 1861. In 1867, Valentine paid me $ 500. I never received anything to pay the drafts except the bond and the $ 500. The bond assigned was delivered to me as security for my debt. Valentine requested me to collect it for my own and his benefit, and other parties. In 1867, I directed Samuel I. Hunt to enter satisfaction of the judgment, and it was done. The $ 500 was paid to obtain satisfaction of the judgment. The bond had been in my possession since 1861." This was all the evidence in the case.

The defendant asked the judge to direct a verdict for the defendant, on the ground that no breach of the bond was shown. The judge declined so to direct the jury, and instructed them that they might find on the evidence a breach of the bond. The jury found for the plaintiff, and the defendant alleged exceptions.

Exceptions overruled.

F. P. Goulding, for the defendant. 1. The bond was not shown to have been duly executed and delivered. The bare admission of the defendant Wheeler's signature did not amount to an admission of the execution and delivery of the bond so as to bind him, because proof of the execution by the principal was essential. Russell v. Annable, 109 Mass. 72. Bean v. Parker, 17 Mass. 591. Wood v. Washburn, 2 Pick. 24. Otherwise it would not appear that the defendant ever entered into the contract declared on. The surety might sign first, and leave the instrument to be signed by the principal afterwards. The order of the signatures is not material, if the bond has been fully executed by all who purport to be parties to it. Rundell v. La Fleur, 6 Allen 480. Non constat that the name of the principal was not forged after the surety signed. [Wells, J. Is not the signature of the surety some evidence that it was executed by the principal?] I do not understand that it is.

2. The execution of the drafts was not proved. If there was any evidence to go to the jury tending to show the acceptance there was no evidence whatever, as against the...