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obligee, there were material alterations made in it without the knowledge or consent of the obligors, which avoided the bond.
Fourth. l'pon the plea of those who signed after the bond was delivered to the obligee, that they were induced to sign and deliver it by fraud; and that they would not have signed or delivered it if they had known that it had before been delivered; and that their signing made a material alteration in it unknown to them after delivery.
Fifth. That when the bond was delivered by the obligors they all, except Batzner and Grinkemeyer, supposed that the signatures of all the obligors who purported to have signed it were genuine, and if they had known that any of the signatures were forged, they would not have delivered the bond; whereas, in fact, one of the signatures, that of Grinkemeyer, was not genuine, but a forgery.
The cause was submitted to the court for trial, and there was a finding for the defendants.
The evidence was as follows:
Grinkemeyer testified, that he did not sign the bond or authorize any one to do it for him. (Judgment had been rendered in his favor upon the ground that his signature was a forgery.)
Clark.-Batzner wanted me to sign the bond. I told him he knew that I was embarrassed and could do him no good. He said he wanted to get one hundred names on the bond, and my name might induce others to sign it. I was at the time insolvent.
Pepper.—Batzner asked me to sign his bond, and said I must or will have one hundred names on it; cannot say which. my name there because he said he must or would have one hundred names on it. Oltel.—Batzner asked me to sign my name.
I told him it was of no use, that I had no property. He said that made no difference, that it was just for fun. He said that so the paper was full it was right. I did not read it, nor did he read it to me. I thought I was just signing for the character of the man. not read English. Ile did not tell me what it was for; I supposed it was for the character of the man.
I had no property at the time.
Witt.-IIave lived in this county twenty-three years. Knew Batzner. I signed the bond at my house. Batzner brought a paper to me; I didn't ask what it was, but signed it; didn't
read it; Batzner said, here, Witt, is a county paper, sign it. I didn't ask him what it was, but signed it; he didn't read it to me.
Martin.—Batzner asked me to sign the paper. I asked him what it was for. He told me it was for his treasurer's bond. I hesitated, and he then told me I need have no fears, for he would have one hundred good men on it before he attempted to file it.
Moorman.- Was sheriff, &c.; saw the bond the day the commissioners met. They met in the auditor's office. There was no court in session. There was a blank in the body of the bondno names except Batzner's, nor any date to it. The blank was filled up after it was approved by Archy Herndon, by the insertion of the names of the sureties.
Buckingham.—Batzner asked me if Mr. D. D. Jones had seen me about his surety bond. I told him he had. I asked him if Mr. Jones and Dr. George Berry had signed it. He said they had not, but were going to; that he had been to see Dr. Berry, and he had promised to come and sign the bond; that he intended to get one hundred names, the best men in the county. I then signed the bond. I asked if Dr. Berry and Dan Jones were certain to go on the bond.
He said they were.
I was induced to sign the bond by these statements, and knowing that Jones and Berry were leading men in the county, and were well acquainted. My understanding was that Batzner was to get the names before the commissioners met, and the bond was then to go to the commissioners.
Berry.—Batzner asked me to sign the bond. I asked him if he had redeemed his pledge he had made as to the number of the men to be on the bond, which was, that he should have one hundred good men on the bond. He said he had not, but would get them. I told him to get ninety-nine and I would be the one hundredth. I did not then sign the bond. The day I signed it he came to me and pressed my signing it. I asked him if he had names; and he said he had not, but intended to get them. I told him that was his pledge, and I did not want to go on until he had got them. He said he wanted to get some names in the country, and did not want to go to get them until he had got the names of his acquaintances in town. I told him I would sign with the understanding that I was to be on if there were one hundred good names on the bond. I signed it, and left it with him, with that
understanding. I left it with him. to be delivered when he got one hundred good men on it.
Shafer.—Batzner came back with a paper in his hand and asked me if I did not want to sign it? I asked him for what? He said he wanted one hundred men on it for recommendation. He said, You must not be afraid to sign your name.
I said if it was nothing else but a recommendation I would do it. I did not read it; it was folded up. I saw nothing written or printed on it. He did not read it to me. I can't read English. I did not ask him to read it to me. I did not know it was a bond. Saw no names on it. Would not have signed it had I known it was a bond. He did not speak of any other paper, or names to a paper, until after I had signed it. During that evening he told me he had a bond filled out at Brookville with sixty names on it.
Stoops.-I was one of the commissioners at the time this bond was approved, and was in attendance. It was a special meeting, called to approve the bonds. When it was first presented I objected that there were not names enough on it. Batzner took it out and got King, West, and others to sign it. Don't recollect whether Grinkemeyer's name was on when he brought it back, or not. Can't
whether it had been filled up with names and dates at the time he brought it back, or not.
Hyatt.— I was commissioner when this bond was approved, and was present when first presented. It was rejected, only a portion of these names being on it. The balance of the signatures were procured same day and within a short time. Think that after it was objected to, all the names, from Johnson down, were put on it. Grinkemeyer's name was brought in; it had not been on before. Don't know whether it was filled up before approval, or not. When first presented the bond was objected to. Batzner took it out and got on it the name of Johnson and those names below his.
Other parties who had signed the bond testified to the same effect.
The opinion of the court was delivered by
RAY, J.—The question presented in this court is upon the sufficiency of the evidence to sustain the finding.
In the case of Deardorff v. Foresman, 24 Ind. 481, 5 Am. Law Reg. N. S. 539, the question presented in this case upon the lia
bility of the sureties, where the bond has been delivered by them to the principal upon condition that others not named in the bond should sign before the bond was delivered to the obligee, and such delivery was made without such signatures being obtained and received by the obligee in good faith, was examined; and it was held that where “the surety places the instrument, perfect upon its face, in the hands of the proper person to pass it to the obligee, the law justly holds that the apparent authority with which the surety has clothed him shall be regarded as the real authority, .and as the condition imposed upon the delivery was unknown to the obligee, therefore the benefit of such condition shall not avail the surety."
This decision was approved in Webb v. Baire, 27 Ind. 368; and in Blackwell v. The State, 26 Id. 204, where it was held that the principal obligor was not the agent of the board of commissioners. This entirely disposes of the plea of a special agency. The special agent is clothed with the apparent authority to make an unconditional delivery of the bond, and the obligee, uninformed of the condition imposed, is authorized to receive the bond thus delivered. Nothing short of absolute notice to the obligee, or circumstances which should put him upon inquiry, and therefore imply notice, can avoid this rule. It is not, as stated in The People v. Bostwick, 32 N. Y. 445, a question of the power of the principal to deliver the bond in its apparently perfect condition, but simply a question of estoppel. The surety signs an instrument complete on its face, and delivers it to the principal to pass over to the obligee; if he impose any condition upon his delivery he must rely upon the principal to execute that condition, for he has made him his agent for the general purpose of a delivery, and has clothed him with the indicia of such agency. The obligee accepts an instrument, perfect in form and execution, which comes to him from the person who should have possession of the instrument for the purpose of such delivery. The entire transaction, so far as the obligee is involved, is according to the ordinary and natural course. The surety, however, while he executes the instrument and places it in the usual channel for delivery, departs from the ordinary course of proceeding by circumscribing the general authority by a condition unknown to the obligee. The condition is disregarded; a fraud is accomplished; and he who has not scrupled to trust his principal with the semblance of a general
authority to make the delivery must stand the hazard he has incurred.
A much broader scope has been given to the doctrine of estoppels in pais, both in this country and in England, than formerly obtained; and it is now established that whenever an act is done or a statement made by a party, which cannot be contradicted or contravened without fraud on his part and injury to others whose conduct has been influenced by the act or admission, the character of an estoppel will attach to what would otherwise be mere evidence. The estoppel must obviously be limited within such bounds as are sufficient to put the party who has dealt on the faith of appearances that turn out to be incorrect, in the same position with reference to the author of such appearances as if they were true. “ The truth is, courts have been for some time favorable to the utility of the doctrine of estoppels, hostile to its technicality:" 2 Smith Lead. Cas. 460; Smith v. Newton, 38 Ill. 230; Knoebel v. Kircher, 33 Ill. 308.
It is intimated by Judge REDFIELD in a note to the case of The York Co. M. F. Insurance Co. v. Brooke, 3 Law Reg. (N. S.) 403, that the English courts have denied the application of the rule to this class of cases, that he who by his culpably negligent act enables his agent to commit a fraud to the prejudice of third persons, is estopped from denying the actual authority of the agent, and the cases of Swan v. The North British, fe., Co., 10 Jur. N. S. 102, and Patchin v. Dubbins, 23 Eng. L. & Eq. R. 609, are cited as authority for the remark.
In the case Deardorff v. Foresman, supra, we examined the first case cited, and the result proved that his conclusions were not sustained by that authority. The case cited of Patchin v. Dubbins, was where a vendor of land covenanted that no building except tombs should be erected on any part of his land opposite to the land sold. Subsequently the vendor sold part of the land on the other side of the road, and the purchaser built thereon. No objection was made to the building erected, as it did not intercept the view of the first vendee. Subsequently another part of the land was sold and buildings about to be erected when the original purchaser filed a bill to enjoin the building; but the court dismissed the bill, holding that the true meaning of the covenant was that it extended only to so much of the lands of the original vendor as were exactly opposite to the land sold to the plaintiff.