Whitaker v. Richards

[198] Opinion, Mr. Chief Justice Paxson : The weak spot in the defence set up below, is to be found in the fact that there was no evidence to show that when Watson signed the bond in controversy, he did so upon the condition that he was not to be bound unless his partner, Gillingham, also signed it. The defendants contended that the bond was intended to bind, not only the firm of Watson & Gillingham, of which firm Watson was a member, but that it was also contemplated that Mr. Magee should sign as a co-surety. The bond sets forth the name of Alexander T. Richards, as principal, and of “R. J. Watson and F. C. Gillingham, trading as Watson & Gillingham,” as sureties, but there is no mention of Magee’s name; and, so far as his alleged omission to sign is concerned, the defence, under all the authorities, is without merit. . We have no occasion to go outside of our own state for authority upon this question. Sharp v. United States, 4 W. 21, was the case of a -bond given in pursuance of an act of congress which required that it should be executed by two or more sureties. It was signed by one surety only. He had a right to suppose the bond would be executed in accordance with the act of congress, and it was held that there could be no recovery against him alone. In Fertig v. Bucher, 3 Pa. 308, the party who executed the bond expressly stipulated that it should not be delivered until twelve names had been obtained to it, and the agent of the obligee so promised; it was held that the bond remained in the hands of the agent as an escrow, and until the condition was performed there could not be a valid delivery of it. In Keyser v. Keen, 17 Pa. 327, the - bond was prepared for six persons to sign, but was executed by five only. It was found in the possession of the obligee, and it was held that it was not to be implied that it was incomplete and not binding on those who executed it. Grim v. School Directors, -51 Pa. 219, was the case of a joint and several bond prepared for signatures by four persons named, but signed by three only. The absence of the signature of the third was held not to be a defence against payment by the three. To the same point is Simpson v. Bovard, 74 Pa. 354. Warfel v. Frantz, 76 Pa. 88, and Keener v. Crago, 81* Pa. 166, are upon all fours with .Fertig v. Bucher, supra. There was an express stipulation that the bond was not to be delivered until all had signed. [199] The evidence shows that it was the intention of Watson to bind his firm, as sureties, when he went to execute the bond. He expected to sign the firm name for that purpose, but was told that the members of the firm must sign their individual names. As the bond was under seal, his signature would have bound himself, but not his firm. He signed his own name, with the expectation that his partner would also sign. For some reason he omitted to do so. Does the fact that Watson expected his partner to execute the bond, and that the firm should thus be held, relieve him from liability? We think not. He made no such stipulation or condition at the time. He might have done so, and thus have protected himself, under the authority of Fertig v. Bucher, and the other cases cited. When a man signs the firm name to an instrument under seal, he always expects to bind his firm. But he does not do so. He binds only himself. The fact that he intended and expected that his partners should be bound equally with himself, has never been held to relieve him from individual liability. In what respect does this ease differ in principle ? And is not Watson in the precise condition as if he had signed the firm name to this bond, intending to bind his firm, yet only binding himself? The argument of the learned counsel for the defendants, while ingenious and plausible, has failed to satisfy us that the court below committed error, either in admitting the board in evidence or in the answers to points. Judgment affirmed.