Commonwealth v. Roark

Opinion of the cottet by JUDGE O’REAR Revebsins. Jolm Roark, being in custody before the county judge of Allen county charged with a felony, was admitted to bail by that magistrate for his appearance before the Allen circuit court to answer any indictment that might be found against him growing out of tbe charge. Appellee, W. B. Roark and others undertook as his' hail, in a bond executed before the county judge, that he would so appear; but he defaulted. In a suit upon the forfeited bail bond, one of tbe sureties, M. G. Brown was discharged, because it was conclusively shown that lie did not in person sign the bond, or by a writing signed by him authorize another to sign his name to it. Section 482, Kentucky Statutes, 1899; Billington v. Com., 79 Ky., 400, 3 R. 19. The other answering; sureties, appellees W. B. Roark and J. M. Braswell, claim that they were released because Brown was not bound. The circuit court discharged them. The facts are, so far as necessary to understand the point to be decided, that [400] W. B. Roark was by a written power of attorney, apparently signed by all the other sureties, and in fact so signed1 except by Brown, authorized as such attorney in fact to sign the names of the sureties to the bail bond. W. B. Roark was present when M. G. Brown agreed to sign the bond as a surety. But instead of signing his name to the paper (the power of attorney), he requested his son, who was present, to sign it for him, which was done. This was' known to W. B. Roark. None of the sureties except W. B. Roark appear to have been present when the bond was; executed before the county judge. It was not shown that the county judge knew that M. G. Brown had not in person signed his name to the power of attorney. Now, can it be that W. B. Roark and the other sureties, whom he was representing as their agent in that matter, are released from liability because Brown was not bound? There is a line of cases decided by this court, notably Com. v. Magoffin, 15 R., 775, 25 S. W., 599; Wilson, Rec’r, v. Linville, 96 Ky., 50, 14 R., 150, 16 R., 340, 27 S. W. 857; Com. v. Yarbrough, 84 Ky., 496, 8 R., 483, 2 S. W., 68; and Com. v. Belt, 21 R., 339, 51 S. W., 431 — which go to the extent that where the county judge or other official representing the Commonwlealth, knowingly permits an incomplete bond to .be accepted, as where some of the sureties’ names were signed by others without written authority from such obligors, none of the sureties will be bound. And this, too, notwithstanding that all the sureties were present, and saw the bond executed as it was, and notwithstanding that in law it is competent for a surety to waive the execution of the bond by .one who had been named therein as his co-surety. In all of those cases the officer representing the Commonwealth knew that some of the sureties named in the bond had not signed it, or knew that some whose names were signed by [401] others had not written authority to do so; at least knew that no such authority was exhibited or filed. Nothing appears in those cases to show that the sureties signing in,tended to waive the due execution of the bond by the others named in it, or that they were aware that the official had. not fully complied with the law in requiring the due execution of the bond. From those facts the court, argued that the other sureties had a right to presume that the official taking the bond had proper assurance that those signing it for others had legal authority to do so, so as to bind them. None of these cases hold, of course, that any one can presume anything to the contrary of his own actual knowledge. But this case goes beyond anything in any of those cited. The sureties here, excepting Brown, had by a valid paper appointed another to act in their stead and for them in this transaction. Under "familiar and salutary principles of the law of agency, when one elects to act by an agent, the knowledge of the latter, acquired or in mind, in that transaction, is conclusively imputed, to such principal. Otherwise, it would be safer to the principal to always act by agent, for the agent’s guilty knowledge — perhaps the scienter of an action based on the contract made by him— would not affect the principal, though he might profit by the agent’s act. Trimble v. Ward, 97 Ky., 748, 17 R., 508, 31 S. W., 864. This matter is well stated by Lord Brougham in Kennedy v. Green, 3 Myl. & K., 699, who says that the reason of this rule is that the “policy and safety of the1 public forbid a person to deny knowledge while he is sc> dealing as to keep himself ignorant, . . . and yet all the while let his agent know, and himself perhaps profit by that knowledge.” W. B. Roark knew exactly how the power of attorney was executed by Brown; the county judge did not know. ¡W. B. Roark appears to have con [402] ceal'ed from the county judge the truth as to how the paper was executed, or, what amounts to the same thing, had presented it as genuine when he knew it was not. His act, being for himself and his co-surpties, was equivalent to a representation by each of them that the paper was the genuine signature of Brown, or, at least, they were willing to waive his executing the bond otherwise. They could have waived Brown’s signature altogether. They can estop themselves, too, from denying that his signature to the power of attorney was genuine. When one surety says to the official taking the bond, “I know all the facts relating to the signing of the power of attorney by my proposed co-surety. • I assure you that he has signed the power of attorney, and request you to accept the bond under that signature of his and of my own, made with full knowledge of. the circumstances, and thereupon to release the prisoner,” such surety has waived any informality in the execution of the bond by his co-surety. It is also, if acted upon, a good estoppel against his afterward denying the validity of his co-surety’s signature. The action of W. B. Roark was tantamount to such assurance. The judgment is reversed, and cause remanded for a new trial, under proceedings consistent herewith. Chief Justice Burnam dissents. Judge Paynter not sitting: