Davis v. O'Bryant

Robinson, J. — Suit by appellees upon an' appeal bond. In the body of the bond appear the names of three obligors, and only two of them signed it. The complaint shows the bond was filed and duly approved and the appeal taken. A complaint against those who did sign it, although a third obligor is named in the bond, is good against a demurrer for want of facts. The fact that a part of the persons named executed it, and part did not, is not ground for demurrer for want of facts, but must be pleaded as a defense. There is nothing on the face of the bond to show it was a conditional delivery, but from the bond itself the delivery purports to have been absolute. Pawling v. United States, 4 Cranch 217. In Fletcher v. Austin, 11 Vt. 447, and Sharp v. United States, 4 Watts. 21, 28 Am. Dec. 676, the question was raised by answer. See Covert v. Shirk, 58 Ind. 264; Wild Cat Branch v. Ball, 45 Ind. 213. If a bond contains the names of other obligors, and is delivered without the, signature of all, the obligee must inquire whether those who have signed consent to its being delivered without the signature of the others. In such case the party signing may question the delivery. But if there is mothing on the face of the bond or otherwise to indicate [378] that others are to sign it, and the bond is accepted on the faith of appearances, without- notice that it is not to be delivered in its then shape, the party signing can not question the validity of the delivery. Allen v. Marney, 65 Ind. 398, 32 Am. Rep. 73; Deardorff v. Foresman, 24 Ind. 481. If a surety signs a bond which is to be signed by another whose name appears in the bond as coobligor, and the bond is delivered without such other person having signed it, and without the consent of the one who has signed, tire delivery is a nullity and such surety is not bound. Allen v. Marney, 65 Ind. 398; Spencer v. McLean, 20 Ind. App. 626, 67 Am. St. 271; Markland Mining, etc., Co. v. Kimmel, 87 Ind. 560. This question of fact was presented in the case at bar by the issues formed by the answer and reply. The court heard the evidence, and we can not disturb the conclusion reached without weighing the evidence. There is evidence from which the Court could conclude that the surety consented to the filing of the bond without the signature of the other obligor named in the bond and that he approved the filing of the bond without such signature. Judgment affirmed.