Gable & Beacham v. Brooks & Brooks

Bartol, C. J., delivered the opinion of the Court. This is a proceeding by attachment under the Act of 1864, ch. 306, (Sup. to Code, Art. 10.) The writ was laid upon certain personal property, as of the goods and chattels of Charles Braid, the debtor. Afterwards the appellees appeared and claimed the property and moved to quash the proceedings for the following reasons: “1st. Because of the want of a proper and legal bond filed in the case. 2nd. Because of the irregularities and legal defects of the proceedings.” This motion prevailed in the Circuit Court and the plaintiffs have appealed. It appears from the record that the attachment was sued out in the name of the appellants as partners, to recover a debt alleged to be due theiA'from Charles Braid. The affidavit required by the Act, as a basis for the attachment, was made on behalf of the appellants by Henry A. Gable, not a member of the firm. The Act, sec. 1, au [113] thorizes the affidavit to he made “ by the plaintiff or some person in his behalf.” In this case the affidavit in its terms, conforms in all respects to the requirements of the Act. We discover no irregularity in the proceedings; unless as alleged in the motion, the bond be insufficient. As said by this Court in Stewart, et al. vs. Katz, 30 Md., 344, “the sufficiency of the sureties is a matter left entirely to the judgment of the clerk; but the legal validity of the bond itself is a subject for review on this appeal.” The bond in the obligatory part states, “that we, Henry A. Gable, agent of Israel Gable, James W. Beacham, trading as Gable & Beacham, M. W. Leib— W. B. Renshaw, in the State of Maryland, are held and firmly bound, &c.,” “ to the payment whereof webind ourselves and each of us, our and eacli of our heirs, executors and administrators firmly by these presents.” It then states the purpose to issue the writ, and the condition as required by the Act, and the attesting clause is, “ In witness whereof we have hereunto- set our hands and seals this 16th day of March, 1876.” It is signed as follows : Gable & Beacham. [seal.] Henry A. Gable. [seal.] M. W. Leib. [seal.] W. B. Renshaw. [seal.] There can be no doubt that this is a good bond to bind Henry A. Gable, Leib and Renshaw — Though it would not bind Gable & Beacham, uuless it was signed by one of the members of the firm, having the requisite authority from his co-partner for that purpose, or by some other person with such authority. It does not appear by whom the names of the firm were signed. We assume however that it was done by Henry A. Gable, who appears to have acted for them throughout the proceedings; and as his authority for that purpose is not shown, we conclude that the mem [114] bers of tbe firm are not bound. But it does not follow that the bond is invalid for that reason. We have said Henry A. Gable, Leib, and Renshaw are bound. The case is very similar to Stewart vs. Katz, before cited. That was a proceeding of the same kind. The writ of attachment was sued out in the name of Stewart, Warden & Fox, trading as A. T. Stewart & Co., by Henry H. Rice acting in their behalf. The bond, which was attacked as invalid, was given by Rice, who called himself, in the obligatory part, agent of S. W. & E., trading, &c., and was signed and sealed by Henry H. Rice, Agt., Alexander Murdock, and C. W. C. McCoy. It was heM to be a good bond, and that Rice and the other parties who signed were bound. It was held that the “ mere description of Rice as agent for the parties who were non-residents of the State, and the expression in the recital that the above bounden, Stewart, Warden and Fox, were about to sue out the attachment, cannot have the effect of setting aside the legal force and operation of the other controlling terms of the instrument, which plainly import personal liability on his part.” The ruling in that case we think governs the present. Here Henry A. Gable calls himself agent in the body of the bond, but he signs and seals the instrument without any affix to his name; and in that respect his personal liability is even more clear than that of Rice in the ca.se cited. Here the names of Gable & Beacham are signed to the bond, which it is assumed was done without lawful authority, in this respect the case differs from Stewart vs. Katz. But that cannot impair the validity of the bond, or affect the liability of the other obligors. The partners, Gable & Beacham, nowhere appear in the body of the instrument, nor are there any terms by which they become parties, or bind themselves as obligors. Their names signed to the paper, if done without authority, may be treated as mere surplusage, which does not vitiate the [115] instrument as to the other parties. It is signed by Henry A. Gable as principal and Leib and Renshaw as sureties, and in this respect the case differs from Wanamaker vs. Bowes, 36 Md., 42, in which it was held that a bond was invalid because not executed by the principal, for the reason that a party could not be bound as principal and surety in the same obligation. (Decided 1st March, 1878.) For the reasons stated, and upon the authority of Stewart vs. Katz, we are of opinion the Circuit Court erred in sustaining the motion to quash. The order will therefore be reversed and the cause remanded. Reversed and remanded.