Wilmington & Weldon R.R. Co. v. Kitchin

• Decision Date: 31 October 1884
• Court: North Carolina Supreme Court
• Parties: WILMINGTON & WELDON RAILROAD COMPANY v. W. H. KITCHIN and others.

91 N.C. 39

WILMINGTON & WELDON RAILROAD COMPANY

v.W. H. KITCHIN and others.

Supreme Court of North Carolina.

October Term, 1884.

OPINION TEXT STARTS HERE

CIVIL ACTION, tried at Fall Term, 1883, of EDGECOMBE Superior Court, before Shepherd, J.

The action was brought to recover the balance due on a bond of twenty-five thousand dollars, which the defendants, forty-eight in number, had executed to one John Barry and assigned by him to the plaintiff.

In or about the month of July, 1881, the said Barry entered into a contract with Kitchin and others to construct the road-bed of a branch railroad from the town of Scotland Neck, in Halifax county, to a point on the plaintiff's road, about a mile and a half south of the town of Halifax. Among other things, he stipulated to furnish all the crossties and lay the same, and do all the necessary work to complete the road-bed, for the consideration of twenty-five thousand dollars, to be paid him when the road was completed. To secure to him the said sum, the defendants, including C. P. Simmons, A. A. White, James A. White, J. L. Whitehead, B. J. Allsbrook and B. D. Gray, executed the bond which is the subject of the action, to said Barry, in which they jointly and severally obligate themselves to pay him the said sum when the road-bed was completed and accepted by the engineer in charge. It was so accepted.

All the defendants, except C. P. Simmons and the others above named, resisted the recovery of the plaintiff upon the ground that there had been a material alteration in the bond, which rendered it void. They alleged in their answer that defendant Kitchin, one of the signers of the bond, brought it to them and requested them to sign it, and at that time it had been signed by some, and among them was the name of Alfred White, a man of wealth and a prominent citizen of Scotland Neck; and they seeing his name, with those of others, agreed to sign the bond, and did sign it by the request of Kitchin; and after their signatures were obtained, and before the bond was delivered by Kitchin to the obligee named therein, the name and signature of Alfred White was erased at his request by the said Kitchin, and the bond was altered without the knowledge or consent of these defendants, and they were not notified of the alteration until after the delivery of the bond by Kitchin to the obligee.

The following issues were thereupon submitted to the jury, who responded as indicated:

1. Was the name of Alfred White, one of the obligors, erased after the signatures of the bond by the defendants without the knowledge or consent of the defendants? Answer--Yes.

2. Did the obligee named in the bond know or consent to the erasure of Alfred White's name? He did not.

3. Was Alfred White, at the time of his signature of the bond, a man of wealth, and did he sign the same before the defendants? Yes.

4. Was the name of Alfred White on the bond an inducement to the defendants to sign it? Yes.

5. Did the defendants sign the bond solely because White's name was on it? No.

It was admitted by the parties that the alteration was made before delivery.

Thereupon it was adjudged by the court that the plaintiff is not entitled to recover, and that defendants recover their costs. From this judgment the plaintiff appealed.

Messrs. J. L. Bridgers, Jr., and Haywood & Haywood for plaintiff .

No counsel for defendants.

ASHE, J.

The only question presented for our consideration by the record, is-- Did the erasure of the name of Alfred White by Kitchin, before the bond was delivered, vitiate the bond?

The instrument is upon its face the joint and several bond of all who signed it. After signing and sealing, it was put in the hands of W. H. Kitchin to be delivered to the obligee. While in the possession of Kitchin the name of Alfred White, one of the original signers, whose signature preceded those of the defendants who contest its execution, was erased by him and then delivered to the obligee without their knowledge or consent.

Kitchin was a co-obligor of the defendants, and, by leaving the bond in his hands to be delivered, was constituted their agent for that purpose.

The act of erasure was either a fraud committed by him upon his co-obligors, or was an abuse of the authority reposed in him as their agent.

If it was a fraud practiced by him upon his co-obligors without the knowledge of the obligee, the defendants are not permitted to set up such a defence to relieve themselves from liability.

It has been recently decided by this court, that one who signs a note or bond cannot avoid his liability by showing that he was induced to execute the same by the fraud of his co-obligor, in which the obligee had no participation. Vass v. Riddick, 89 N. C., 6. There, the action was brought on a promissory note payable to W. W. Vass and purporting to be signed by Leroy Bagley and W. H. Bagley. The proof was that Leroy Bagley carried the note to N. J. Riddick and asked him to sign it as security, which he did,...