Kenck v. Parchen

PIGOTT, J. -From June 23, 3 888, to January 28, 3893, defendant Yaeger was administrator of the estate of William Craigie, deceased. On the day last mentioned his letters were revoked, and on June 12th following plaintiff qualified. On December 2, 1895, in a proceeding against Yaeger for an accounting touching his administratorship, the court found that on September 1, 1889, he had converted to his own use $2,256 of the money of the estate, which sum, with interest thereon at the rate of 6 per cent, per annum from October 1, 1889, amounting in all to $3,090.72, he still owed the estate; and judgment against Yaeger was rendered accordingly. To recover the sum so adjudged due from Yaeger, this action was brought against him- and his sureties on his official bond, of which the following is a copy: “Know all men by these presents, that we, Henry C. Yaeger, as principal, and T. H. Kleinschmidt and Henry M. Parchen, ás sureties, are held and firmly bound to the Territory of Montana in the sum of five thousand dollars, lawful money of the United States of America, to be paid to the said Territory of Montana, for which payment well and .truly to be made we bind ourselves, our and each of our heirs, executors and administrators, jointly and severally, firmly by these presents. Sealed with our seals, and dated this 20th day of June, 1888. ‘ ‘The condition of the above obligation is such that whereas, by an order of the probate court of the county of Lewis and Clarke,-Territory of .Montana, duly made apd. entered on [523] the 13th day of June, 1888, the above-bounden Henry C. Yaeger was appointed administrator of the estate of William Craigie, deceased, and letters of administration were directed to be issued to him upon his executing a bond, according to law, in said sum of five thousand dollars. ‘Now, therefore, if the said Henry C. Yaeger, as such administrator, shall faithfully execute the duties of the trust according to law, then this obligation to be void, otherwise to remain in full force and effect. “T. H. Klbinschmidt. [Seal] “H. M. Parchen. [Seal]” Yaeger presented the bond to the probate judge, who approved it on June 23d, and the clerk, after filing it, issued letters to Yaeger, who had already taken the oath prescribed. The sureties answered, denying that Yaeger converted any funds of the estate. They interposed also the following plea: ‘ ‘Deny that these answering defendants ever executed, made or delivered the said alleged bond set forth in paragraph 3 of said complaint; and, while admitting that they signed the same, they aver that they signed the same without intending to enter into any independent undertaking for themselves, and upon the express condition and direction to the defendant Yaeger that the same should not be filed with the probate court until said Yaeger himself had signed the same as principal, and that the said Yaeger was so named as a party to said bond upon the face thereof, but that he never signed or executed the said bond. ’ ’ Trial was by the court without a jury. The testimony of the sureties tended to show this state of facts: When Yaeger presented the bond to them for their signatures he had already filled in the blanks in the bond, with the exception of the names of the sureties. His own name, which appears three times in the bond, was written therein by himself. Entertaining the opinion that the bond would not be an obligation binding Yaeger, and that they would be principals and have no recourse to him thereon, unless his name were subscribed thereto, the sureties signed the bond and delivered it to Yae [524] ger, with secret instructions not to file it until signed by him. Yaeger never subscribed the bond. The court found that the sureties signed the bond upon the express condition between themselves and Yaeger that the same should not be filed with the probate court until Yaeger had subscribed the bond, and that the approval and filing of the same by the probate judge, and clerk was without the knowledge of the sureties, but held that the sureties were nevertheless liable. Judgment was entered accordingly for $3,341.10, including interest; from which, and from an order denying their motion for an¿w trial, the answering defendants appeal. 1. The first assignment is that the court erred in rendering ju'dgment for any amount against the sureties on the bond, it being insisted that the instrument sued on is, under the facts stated, not enforceable against them, because they did not consent to its delivery. This condition is disposed of adversely to defendants in Woodman v. Calkins, 13 Mont. 363, 34 Pac. 187, and Cockrill v. Davie, 14 Mont. 131, 35 Pac 958. The cases of Hart v. Mead Investment Co., 53 Neb. 153, 73 N. W. 458, Byers v. Gilmore, 10 Colo. App. 79, 50 Pac. 370, and Doorley v. Farmers & Mechanics’ Lumber Co., 4 Kan. App. 93, 46 Pac. 195, are likewise in point and to the same effect. See, also, Kurtz v. Forquer, 94 Cal. 91, 29 Pac. 413. Were the bond joint only, and not joint and several, different principles might perhaps be applicable, as was held in Weir v. Mead, 101 Cal. 125, 35 Pac. 567. Por another reason the assignment is without merit. The answer, as will be observed, avers that the sureties signed the bond upon the condition that Yaeger should also sign it, and that they did not consent to the delivery without his signature. Yaeger did effectually sign the bond by writing his own name three times in the body of the bond, and delivering it to the próbate judge, thereby adopting the signatures written by him. (McLeod v. State, 69 Miss. 221, 13 South. 268.) It is, as a matter of law, immaterial where the signature be; it is as binding when found anywhere else in the paper as it is when appearing at the end, ‘ ‘the question being always open [525] to the jury whether the party, not having signed it regularly at the foot, meant to be bound by it as it then stood, or whether he left it so unsigned because he refused to complete it.” (Johnson v. Dodgson, 2 Mees. & W. 653; State v. Hill, 47 Neb. 456, 66 N. W. 541.) The answer states that the condition imposed on, and the direction to, Yaeger was that the bond should not be filed with the probate court until he had signed it, — not that his subscription must prcede the filing. The delivery of the bond was not, therefore, a violation of the condition pleaded. (State v. Hill, supra.) 2. The remaining assignment is that the court erred in rendering judgment for any amount above §2,256, and interest from December 14, 1895, when the demand was first made on appellants. This question was presented in Botkin v. Kleinschmidt, 21 Mont. 1, 52 Pac. 563, where it was, in effect, decided that a judgment against an administrator in a probate proceeding of the character of the one involved here is conclusive as against the sureties, and cannot be inquired into collaterally; and we affirm the doctrine there declared. The judgment and the order denying a new trial are aifirmed. Affirmed. Brantly, C. J., and Hunt, J., concur.