State ex rel. Goddard v. Dean

Holmes, Judge, delivered the opinion of the court. The suit is upon a bond taken by the sheriff upon a claim made under the statute for certain goods levied on under ex467 editions in his hands. The plaintiff recovered judgment, and the defendants bring the case up by appeal. The grounds of error that are chiefly relied on arise upon the instructions and concern the execution of the bond. It is objected that after the bond was signed by the defendants, the deputy sheriff changed the name of the claimant mentioned therein by altering the Christian name from Francis to Franklin, and filled up the blanks left for the description of the property levied on by annexing thereto the inventory of the goods (which was very long), when the same had been completed some days afterwards. The bond was duly approved by the sheriff and returned into court. The evidence showed that the mistake in the name was merely a clérical error; that the real name of the party intended was Franklin; and that the inventory annexed was of the goods which had been levied on, and were claimed, and were the same that were intended and understood by the parties. There was nothing to show that the bond was filled up otherwise than in accordance with the real transaction and the intention of all the parties. There was no proof that any fraud was attempted or accomplished, nor that any injury was done to the defendants. The several acts done — the levy, the claim, the execution of the bond and its. approval and return — are to be taken as parts of one and the same transaction. On the facts shown, the officer must be deemed to have had authority from the defendants signing the bond to fill up these blanks in conformity with the true nature of the transaction and in pursuance of the real intention of the parties. There was no such material alteration here as will avoid the instrument. "Whether the alteration were material or not is a question of law for the court; but the question whether any material alteration was in fact made, or whether there was authority to fill up the blanks and alter the name in the manner in which these things were done, is a matter for the jury to determine—2 Pars, on Cont. 719-22; Stahl v. Berger, 10 Serg. & R. 170; [468] Smith v. Crocker, 5 Mass. 538; Wooley v. Constant, 4 J. R. 54; Ex parte Kirwin, 8 Cow. 118. The jury have found the facts for the plaintiff under instructions which laid down the law correctly enough, and their verdict must not be disturbed. The question of intention and authority was submitted to the jury; the actual knowledge or consent of the parties afterwards was immaterial. Nor was it a matter of any consequence that the bond bore date of one day and the claim in writing of the next day, when it appeared that it was all one transaction. There was no error in refusing the defendants’ instructions on these points. We think it very clear that the plaintiff was entitled, on the evidence, to recover the damages covered by the bond. His former recovery against the sheriff and his sureties, in a suit resting upon the ground that the bond taken was not large enough to cover the value of goods levied on and therefore did not protect the sheriff, but which had never been actually paid, was no bar to a suit upon this bond, nor to a recovery for the amount covered by it. In this respect the remedies were merely cumulative. Actions against a number of persons who are severally liable for the same thing, or against the same persons on distinct securities for the same debt or duty, are consistent and concurrent remedies—State to use McMurray v. Doan, 39 Mo. 44. Judgment affirmed. The other judges concur.