People ex rel. Bartlett Co. v. Carroll

Grant, C. J. (after stating the facts). 1. The bond was evidently given in compliance with Act No. 187, Pub. Acts 1905. Counsel for defendants insist that the declaration does not aver the existence of all the facts essential to maintain the action. Their argument is that [236] the bond upon its face imports a joint obligation of Tobin and Barnes as principals and the defendants as sureties; that it cannot be changed into a liability of the sureties alone without knowledge or consent on their part, and that there is no averment in the declaration that the bond was delivered by the sureties with knowledge that the principals had not signed or that they had waived execution by the principals. In support they cite Johnston v. Township of Kimball, 39 Mich. 187. That case was tried upon the merits, and the proofs showed that the bond in question was accepted by the supervisor without any knowledge or consent of the sureties that it was not to be signed by the principal. The questions of knowledge and waiver are not raised by the demurrer or assignments of error. We think, however, that a complete answer to this entire contention is that the declaration avers that the bond was delivered by the defendants themselves. If they delivered it to the obligee without the signatures of the principals they would be held to have waived such signatures, unless there was an understanding that they were to be procured before the bond should be valid. There is no presumption that defendants delivered the bond by mistake. The question therefore becomes one of proof upon the trial. 2. The second ground of demurrer is without merit. The declaration alleges the execution of the contract and the bond at the same time, and that the bond was given to secure the faithful performance of the contract. The identity of the contract with the one mentioned in the bond is the proper subject of proof upon the trial. 3. Defendants cannot avoid liability by showing the failure of the municipal authorities to approve the bond. People v. Johr, 22 Mich. 461. See, also, Board of Education of Detroit v. Grant, 107 Mich. 151. Judgment affirmed, and the cause remanded for further proceedings. Blair, Moore, Carpenter, and McAlvay, JJ., concurred.