Polacheck v. Moore

Maeshall, J. A considerable portion of the brief of counsel for appellants is taken up with the proposition that if a person signs a bond as surety, with a verbal condition that it shall not be binding till another person signs as surely, or with some other verbal condition, and leaves the' instrument, subject thereto, with the principal, thereby clothing him with apparent authority to complete the paper and deliver it, or putting him in such a position that he can readily do so without the obligee knowing the facts, and he makes delivery of the paper without complying with the condition, and the ob-ligee, without notice of the breach of authority or such reasonable means of knowledge thereof as would put an ordinarily prudent person upon inquiry as to the facts, in good faith relies upon the instrument, the conditional signer is estopped from denying that he is liable as indicated upon the face of the instrument. It is claimed that such proposition is in harmony with Belden v. Hurlbut, 94 Wis. 562, 69 N. W. 357; New Home S. M. Co. v. Simon, 104 Wis. 120, 80 N. W. 71; and Rehbein v. Rahr, 109 Wis. 136, 143, 85 N. W. 315. We are unable to see how that has anything to do with this case if, as found by the referee and the court, Moore did not execute the bond, conditionally or otherwise, or do anything liable to mislead a person of ordinary prudence into believing that he did. Therefore, we "omit to pass upon it, without intending to cast any doubt upon anything said in either of the cited cases. By proper exceptions and assignments of error appellants’ counsel challenge the decision of the court above referred to. [265] If the purpose o-f Moore’s signing the paper is open to investigation, there can he no reasonable controversy bnt that the •conclusion complained of is right. The proper place for the signatures of the principal and surety to a bond is at the foot thereof. True, that is also the place for the seals, and in this case they were at the ends of the lines drawn to indicate the proper places for signatures to the justification. ■ That indicates that they were misplaced. Without discussing áll the peculiar features of the instrument, it is considered that the nourt was amply justified in holding that they were such as to put a reasonably prudent person upon inquiry as to whether respondent’s signature was affixed to the paper with the intention of executing it. The name “Wm. Moore” at the foot of the informal affidavit of justification, conceded to be in respondent’s handwriting, is plainly not in the same handwriting as the same name at the proper place in the body of the affidavit. It is not so located that it can reasonably be considered a signature to the bond. It follows the venue of the affidavit and is clearly a part thereof. The principal signed the bond in the proper place. True, he also signed the affidavit, but that does not militate against the fact that he recognized that the proper place to sign for the purpose of executing the bond was at the foot thereof. The .■affidavit was drafted to be signed by two sureties, and was afterwards changed. The indications are that the same pen •and hand that made such change wrote the name "Wm. Moore” at the commencement of the affidavit. There are several other features about the instrument that are peculiar. Those to which reference has been particularly made are ample to arouse in the mind of any man of common sense and prudence at least a reasonable doubt as to the purpose of Moore’s signing as he did. The court rightly modified.the ■decision of the referee as indicated. Appellants’ counsel contends that it is not essential to the validity of a bond that the signatures of the parties thereto [266] should be in tbeir proper places. That is true, but the conclusion drawn by the referee therefrom on the evidence does not follow. If the signature of a surety to a bond is so placed as to fairly raise a question as to whether it was affixed with, intent to execute the instrument, that question must be solved as one of fact upon evidence. It by no means follows as a. matter of law, because it is not necessary in order to hold a surety on a bond that his signature be in its proper place,, that he is bound by a misplaced signature. The rule is stated in De Col. Guar. & Prin. & Sur. (3d ed.) 190, thus: “Where' the party to be charged has not signed the instrument in the-usual place, the question is always open to the jury, whether-the party, not having signed it regularly at the foot, meant to be bound by it as it stood, or whether it was left so unsigned because he refused to complete it.”- The case cited by counsel, and many others, are to the same effect. Richardson v. Boynton, 12 Allen, 138; Garvin v. Dean, 115 Mass. 577; Fournier v. Cyr, 61 Me. 32. Having reached the conclusion that the condition of the-instrument sued on, when it came to the hands of appellants, was such as to put them on inquiry as to whether respondent, signed the affidavit with the intention of executing the bond, and that the resulting question was one of fact to be decided upon the evidence, there is little more that need be said. The-question was found by the referee in favor of respondent. The finding was. confirmed by the court. All of the direct evidence supports the finding. No circumstance disclosed by the evidence is inconsistent therewith. In 'other words,, all the evidence produced on the subject supports respondent’s contention that he never executed the bond, conditionally or otherwise; and the decision of the court, that he was-not guilty of negligence which reasonably misled appellants, is warranted by the evidence. It follows that the instrument sued on was never a binding obligation upon respondent Moore, either because of his having signed it or been guilty [267] of such acts as to wrongfully mislead tbe appellants and be thereby chargeable by estoppel. If appellants were misled into accepting the defective paper as a valid bond, as claimed, their loss is chargeable to their own imprudence, and not to any wrongful conduct on the part of Moore. By the Oourt. — The judgment is affirmed.