Columbia Avenue Trust Co. v. King

Opinion by Mr. Justice Elkin, February 21,1910: This is a suit against one of the sureties on a bond containing a joint and several obligation to pay. The defense is that the appellant signed the bond on condition that Potts, a proposed third surety, should also sign it, and inasmuch as Potts did not subsequently sign as contemplated, no liability attaches to King. There is no difficulty about the law in such cases, and as a rule the controversy is as ,to the facts. This is true in the present case. When one becomes surety on a bond on condition that another shall also become a co-surety, and the instrument is delivered to the obligee with this understanding after notice, and subsequently the proposed co-surety refuses or neglects to sign, the surety who did sign on condition is not liable. This rule is recognized in all our cases, but the obligee [311] must have notice of the conditional signing before delivery. What understanding or arrangement the obligors may have had among themselves has no binding force upon the obligee unless the bond was accepted with knowledge of the alleged conditions. In the case at bar there is nothing in the bond to indicate a conditional execution. When plaintiff introduced in evidence the bond and lease and proved the amount due by the principal a prima facie case was made out.. The burden was then on appellant to meet this situation by countervailing proof which the learned court below concluded was not done. After a careful reading of all the testimony we have reached the same conclusion. The effort was to prove that the president of the trust company had been notified at or before the delivery of the bond of the alleged conditional signing by King. He testified in the most positive terms that he had received no such notice and that the bond was not taken upon any such condition by the trust company. The testimony of Williams relied on to prove notice is vague, indefinite, inconsistent and in some instances contradictory. When put to the test he would not say that notice of the conditional signing by King was given to Cuming before the delivery of the bond. If given after the delivery it was too late because in the absence of notice the trust company had a right to rely on the bond according to its terms when delivered and accepted. The rights and liabilities of the parties were fixed as of that date. The bond on its face was an absolute undertaking, and the testimony of Williams is too vague and indefinite to permit a jury to guess or conjecture whether some other kind of liability was intended by the parties. The learned trial judge was clearly right in the disposition of the case and we are not convinced that any substantial error was committed. Judgment affirmed.