Valentine v. Wheeler

Devens, J. The facts which it was necessary for the plaintiff to prove in order that he might recover were established by competent, and, in the absence of contradiction thereof, sufficient evidence. 1. Assuming that it became necessary, inasmuch as the defendant executed the bond as surety for the plaintiff, to show also that there was an execution thereof by the principal, yet, when the signature of the defendant was proved by his own admission of its authenticity, the fact that there was a signature above his own, apparently that of the principal, and in the appropriate place for such signature, upon the bond produced by the obligee, furnished some evidence, as against the surety, that the bond had been executed by the principal. The production of the bond by the obligee from his own possession also tended to show that it had been delivered to him. 2. There was evidence of the purchase of goods by J. P. Wheeler of Hunt, of his presence with the plaintiff and Hunt at the time the drafts were indorsed and accepted, and of his admission at this time that he had drawn them, and these facts were competent in order to prove that the signature upon such drafts, purporting to be that of J. P. Wheeler & Co., was genuine. 3. The evidence that drafts were given by J. P. Wheeler & Co. to the seller of goods to them, which drafts were accepted afterwards, was competent in order to prove that the acceptances were given under the bond. As, by the terms of the bond which the obligors executed, it was to be void only upon payment by J. P. Wheeler & Co. of all “ demands, acceptances,” &c., for which “ said Valentine is in anywise responsible for or on account of said firm of J. P. Wheeler & Co.,” it could not be presumed, as against Valentine, that the drafts were drawn against funds of J. P, Wheeler & Co. in his hands. 4. The nominal plaintiff, Charles H. Valentine, who assigned the bond in suit to the holder of the acceptances after judgment thereon, and further paid the sum of $500 upon such judgment, has been made responsible upon the acceptances, and has suffered [482] loss to the extent, at least, of the $500 paid by him. There has been, therefore, a breach of the bond, and judgment should be entered for the penal sum; but the inquiry for how much of the penal sum execution should issue is not here presented. Gen. Sts. c. 133, §§ 9, 10. Exceptions overruled.