Loew's Administrator v. Stocker

The opinion of the court was delivered, by Sharswood, J. This action was against the defendant below as the administrator of one of the obligors of a joint and several bond of indemnity to the obligee, who was the sheriff of Carbon county when it was executed. Its object was to save him harmless in the seizure and sale of certain goods under an execution in his hands. No question was made as to the signing and sealing by the decedent, and that it was delivered by one of the obligors to the sheriff, it is not pretended that there was any actual fraud or false representation upon the faith of which the instrument was executed. It is contended, however, that because the name of one of the co-obligors was affixed by a person who assumed without authority to seal and deliver the bond as his attorney in fact, therefore the decedent was not bound. In the view we take of the case it is entirely immaterial whether the co-obligors were sureties or principals, and we dismiss therefore the 2d assignment [231] of error. All the other assignments depend upon the same question, and may be considered together. Had the bond not been executed at all in the name of Jonathan Brock, although he was mentioned as one of the obligors in the body of the instrument, it is clear that Loew could not have availed himself of that fact as any defence. Keyser v. Keen, 5 Harris 327, and Grim v. The School Directors, 1 P. F. Smith 219, are authorities directly in point. It was held in those cases that no condition could be implied to the execution by each several obligor that the bond should be executed by all the persons named in it, before it became binding upon any. Being a several as well as a joint bond, it was the several obligation of each as soon as it was unconditionally delivered. If any party executing it meant otherwise it was his business to protect himself by delivering it as an escrow only, as was done in Fertig v. Bucher, 3 Barr 308. If in these eases no condition was implied, fortiori it would seem there can be none here. It is sought to imply a contract by the obligee with each obligor that the signatures of all the others are genuine or affixed by their authority. It was Loew’s interest and duty to satisfy himself on that point, as the means of assuring himself of contribution. Suppose each bond had been a separate instrument. The same right of contribution would have existed. Yet it surely could not be maintained that if one of the bonds for any reason was invalid, all the others would fall. There was no evidence that the obligee, Sheriff Stocker, had anything to do with procuring Loew to join in the bond. He was not even present when it was executed. It was tendered and delivered to him by the attorney of the plaintiff whose writ he was required to execute. There could therefore be no implied affirmation by him that the bond had been duly executed by the others. The able and lucid charge of the learned judge below renders any further elaboration unnecessary. Judgment affirmed.