Palmer v. Seligman

Champlin, J. The bond in suit was given to the sheriff of Montcalm county to indemnify him against loss, costs, and damages in case he would levy an attachment issued out of the circuit court for the county of Montcalm, wherein Lewis Newbauer, Nathan Newbauer, Edward Newbauer, and Charles Newbauer were plaintiffs, and Louis Simon was defendant, upon certain goods and chattels Avhich appeared to belong to Louis Simon, but which were claimed by Isabella Lewis, of the village of Edmore. The plaintiffs in the attachment suit composed a partnership under the firm name of L. Newbauer & Sons, and their place of business was Milwaukee, Wisconsin. The bond stated that L. NeAvbauer & Sons as principals and Jacob Seligman and EdAvard H. Doyle as sureties, were held and firmly bound unto John Q. Orippen, Esq., sheriff of the county of Montcalm, State of Michigan, and was signed as folloAvs: “L. Neavbauer & Sons. [l. s.] “ Per M. E. Pollasky. . “Jacob Seligman. [L. S.] “E. H. Dotle. [L. S.]” After the bond Avas delivered to the sheriff, the attach308 meat was levied upon a stock of goods as being the property of Louis Simon; aud thereupon one Isabella Lewis-brought trover against the'officer levying the attachment, and recovered judgment. The goods seized were sold under an order of the court, and the proceeds held until final judgment was obtained, and the avails were then paid over to the attorneys of L. Newbauer & Sons. This-suit is brought by the assignee of the sheriff upon the indemnity bond. It appeared that M. E. Pollasky was a traveling salesman for L. Newbauer & Sons, in Michigan, who were non-residents of the State of Michigan, and that he employed attorneys, and instituted the attachment suit. The sheriff refused to levy upon the goods mentioned until he was secured, and the aforesaid bond was given. In this suit the members constituting the firm of L. Newbauer & Sons were made parties defendant, but were not served with process. The sureties were served, and appeared, and defend upon the ground that they were induced to sign the bond as sureties by the representations made to them that said bond had been duly signed and executed by the principals therein named, and that such representations were false and fraudulent. TJpon the trial the plaintiff introduced testimony showing the circumstances under which the bond was given, and also testimony tending strongly to show ratification of the act of Pollasky in executing the bond, on behalf of the principals. The deposition of Mr. Pollasky was taken in behalf of the plaintiff, and we must say that his testimony does not impress us that he testified with candor. Whether he did or not was a question for the jury,, but the circuit judge did not permit the case to go to the jury. Pollasky testified that, at the time he signed the bond in the name of L. Newbauer & Sons, he had no written [309] authority under seal to do so. At the close of the testimony the plaintiff offered the bond and assignment thereof in evidence. The counsel for defendants Seligman and Doyle objected, on the ground that the authority of the agent to sign the bond for the principals had not been shown. The court sustained the objection, excluded the bond and assignment from the evidence, and directed fhe jury to render a verdict for defendants. Although no express authority under seal was shown by which Pollasky was authorized to execute the instrument, yet his act in so doing could be ratified by parol, and this ratification may be shown by facts and circumstances; .and the question of ratification, where there is testimony tending to show it, and inferences to be drawn from it, is for the jury. We do not depart from Fox v. Norton, 9 Mich. 207. There is, however, a material difference between that case and this. In that case the bond was executed to procure the discharge of a steam-boat which had been attached under the boat and vessel law, and Gilbert & Go. signed as sureties. Going security upon such a bond was not in the scope of their business; and to bind the partner who did not execute the instrument, in the absence of authority under seal, some previous .assent or subsequent ratification as the act or obligation of the firm was requisite to be shown. In this case the firm is the principal named in the bond, and it was given in a suit instituted by them to collect their own debt due from a creditor. To entitle the plaintiff to recover, however, in this suit, it is incumbent upon him to show that the principals executed the bond, as well as that the sureties did; for the action is brought jointly against the principals and sureties. But the plaintiff may show the execution by showing either that Pollasky was duly authorized by them to execute the bond in their name, at the time, or that they have sub [310] Bequently ratified his act; and this latter he may show by-facts and circumstances by which the jury may find ratification. We think there was testimony which should have been submitted to the jury upon this question; and therefore reverse the judgment, and direct a new trial. Sherwood, C. J., Campbell and Long, JJ., concurred. Morse, J., did not sit.