COOPER v. DE MAINVILLE

27 P. 86

1 Colo.App. 16

COOPER
v.
DE MAINVILLE et al.

Court of Appeals of Colorado

June 23, 1891

Error
to Lake county court.

[1
Colo.App. 17] J.E. Havens and Bennett & Bennett, for
plaintiff in error.

N.
Rollins, for defendants in error.

RICHMOND,
P.J.

This
was an action upon an appeal-bond. On the 21st of March,
1884, plaintiff in error obtained, before a justice of the
peace for Lake county, a judgment against Sylvanus Ayres,
Jr., for the sum of $226, from which judgment Ayres appealed
to the county court, filing an appeal-bond. Subsequently the
county court directed appellant to file another and
sufficient appeal-bond, which was done. Said appeal-bond, so
filed, was signed by Isaac Cooper and William A. Ellis as
sureties. The original cause was tried in the county court,
resulting in a judgment for defendants in error. After this,
suit was instituted upon the bond, and service of summons
made upon Isaac Cooper. To the complaint Cooper answered,
alleging that the bond was not his, because, at the time of
the execution and delivery of it to the principal, (Ayres,)
Ayres promised and agreed that he would not deliver the bond
until the signature of another person had been procured. To
this answer a demurrer was interposed and sustained.
Thereafter Isaac Cooper died, and the plaintiff in error,
Sarah F. Cooper, as administratrix of the estate, appeared to
defend the action, and elected to stand by the answer. Two
errors are assigned: First, the error of the court in
sustaining the demurrer and entering judgment; second, to the
form of the judgment. [1 Colo.App. 18] The first question for
consideration is whether, when a surety who signs and seals a
bond, and then delivers it to the principal obligor, upon the
condition that it shall not be delivered until it has been
signed by another co-surety, and the principal delivers it in
disregard of the condition, not making known the condition,
there being no circumstances which should put the person
receiving it on inquiry, does the instrument become operative
as a legal deed. This question, we think must be answered in
the affirmative. Conceding that every thing alleged in the
answer is true,--that the understanding existed between Ayres
and Cooper that another co-surety should be procured before
the delivery of the bond, yet neither the obligee of the bond
nor the clerk of the court to whom it was delivered had
knowledge of such understanding or agreement. Besides, the
bond was in all respects regularly executed, according to the
prescribed form, and accepted by the officer whose duty it
was to take it as a completed contract. There was nothing on
the face of the paper, or in the instrument itself, to put
the officer on inquiry, or to raise a suspicion in his mind
that a condition was annexed to the delivery of the
instrument. The transaction was one of ordinary occurrence in
perfecting appeals from one court to another. No blank was
left for the name of the additional co-surety, nor was the
name embraced in the body of the bond; and, in addition to
this, the record discloses the fact to be that the two
sureties, Ellis and Cooper, appeared before the clerk of the
court, and qualified as such sureties. At that time they knew
the bond was in the hands of the clerk to be filed; they knew
that the principal obligor, Ayres, had delivered it; and that
upon their qualification it would be filed; and not until
after the trial of the cause appealed from the justice's
court, and the institution of suit on the bond does it appear
that this agreement or understanding was made known. We admit
that there is a conflict of authorities upon this
proposition, yet, after a thorough review of those cited by
the plaintiff in error, and such others as are referred to in
[1 Colo.App. 19] the textbooks, we unhesitatingly declare
that the better reasoning supports the position here taken.
In Dair v. U.S., 16 Wall. 1, Justice DAVIS, in commenting
upon the identical proposition here under consideration,
says: "It *** is easy to see, if the obligors are at
liberty, when litigation arises and loss is likely to fall
upon them, to set up a condition unknown to the person whose
duty it was to take the bond, and which is unjust in its
result, that the difficulties of procuring satisfactory
indemnity from those who are required by law to give it will
be greatly increased." In State v. Peck, 53 Me. 284,
BARROWS, J., has collected and distinguished the cases on
this subject in a most satisfactory manner, and we might
consistently rest our conclusion upon that case. In the
conclusion of the opinion he says: "If there are cases
that militate against the views here expressed, we are
satisfied that they savor more of the growing looseness of
commercial morality than of adherence to wholesome legal
principles." If the doctrine of estoppel would not apply
here, might not the inquiry
[27 P. 87.]
well be asked, to what state of facts could it apply? Here
the surety who defends this action had invested the principal
with an apparent authority to deliver the bond, and there was
nothing on the face of the bond, or in any of the attending
circumstances, to apprise the official who accepted it that
there was any secret agreement which should preclude the
acceptance of the bond. This surety alone is certainly in
fault, as but for this unwarranted trust in Ayres he would
never have had it in his power to occasion the loss which the
obligee of this bond must suffer if the defense made is
successful. There is no reason why this opinion should be
extended by further reviewing the authorities. The work has
been done, and thoroughly done, in several well considered
cases in Maine, Indiana, Kentucky, Missouri, Illinois, North
Carolina, Virginia, Louisiana, and Michigan Hunt v. State, 53
Ind. 321, Millett v. Parker, 2 Metc. (Ky.) 608; Nash v.
Fugate, 24 Grat. 202; State v. Potter, 63 Mo. 212; State v.
[1 Colo.App. 20] Peck, supra; Chalaron v. McFarlane, 9 La.
227; Smith v. Peoria Co., 59 Ill. 412. These authorities
satisfy us that the conclusion of the court in sustaining the
demurrer to the answer must be affirmed.

The
next question for our consideration is as to the form of the
judgment. The judgment rendered is against the estate of
Isaac Cooper for the sum of $600, the penalty of the bond.
"The court finds that the estate of Isaac Cooper is
indebted to the plaintiff in the sum of $600, the penalty of
the appeal-bond sued on herein, and that the damage sustained
by the plaintiff herein amounts to the sum of $346.78. It is
therefore by the court ordered and adjudged that the
plaintiffs, Frank De Mainville and W.H. Brisbane, do have and
recover, of and from the said defendant, the estate of Isaac
Cooper, deceased, the sum of $600, the penalty of the bond
aforesaid, together with their costs in this behalf expended,
thereafter to be taxed, and that execution issue
therefor." This was clearly error. The judgment should
have been for the sum named as damages, payable out of the
estate of the deceased in due course of administration.
Gen.St., p. 1055, § 3618, provides that, "upon a
recovery of judgment *** against any executor or
administrator, or a demand due from his testator or
intestate, no execution shall be issued thereon, but the
party recovering said judgment shall cause a transcript of
the judgment entry to be filed in the county court, and the
same shall be classed and paid as other demands are."
This question is directly passed upon in Mattison v. Childs,
5 Colo. 78. For this error the judgment must be reversed, and
the cause remanded, with instructions to enter judgment for
amount of damage, in conformity with this opinion.