Butterfield v. Mountain Ice & Cold Storage Co.

SMITH, J.: The plaintiff recovered judgment in the justice’s court •against the Mountain Ice & Cold Storage Company. An .appeal was taken to the district court, and the defendants B. K. Bloch and John Heil, Jr., signed the appeal bond. In the district court the plaintiff again recovered judg-ement, which being unsatisfied, he brings this suit against ■■the sureties on the appeal bond. The bond is in the ’•usual form. After stating the appeal, it reads: “Now, •therefore, in consideration of the premises and of the said .appeal, the undersigned, as principal, and John Heil, Jr., .and B. K. Bloch, as sureties, do undertake,” etc. The •defendant B. K. Bloch filed an answer, and alleged, in -substance, that on or about the date of the bond, which was on the 12th of August, 1892, one William Messick, who was then acting as agent of the Mountain Ice & •Cold Storage Company, requested this defendant that he would sign the undertaking on appeal, and that the said bond had not then been signed by the principal, the Mountain Ice & Cold Storage Company.; that defendant stated to .said Messick that he was willing to sign the said undertaking on appeal provided, before its delivery to the justice •of the peace, it was signed by the principal, the Mountain Ice & Cold Storage Company; that it was stated and represented by the said Messick that there was no intention •of delivering the undertaking on appeal to the justice of [198] the peace, or to any one else, until it was first signed by such principal; and that, with this distinct understanding- and agreement, this defendant signed the said bond; and that he never knew or had any information that the same-was not signed by the principal until after payment was-demanded of him as surety upon said appeal bond. The answer then further reads that, notwithstanding the agreement, Messick, in violation of it, did deliver the bond on appeal to the justice of the peace. The defendant moved the court to strike out the answer from the files as sham and frivolous, and for judgment on the pleadings. The-court granted the motion, and rendered judgment against the defendants. The defendant Bloch appeals. The question before this court is whether or not the court erred in striking out the answer of the defendants, and whether the court erred in rendering judgment in favor of -the plaintiff, and against Bloch, for the amount, of the judgment and costs due from the Mountain Ice &. Cold Storage Company. The only real question in the case is whether or not the answer states any defense to the plaintiff's action. It is not denied that the bond was sufficient, under the statutes of this territory, as a bond upon appeal. In other words, the statute does not require-that the principal upon an appeal shall sign the appeal bond. Section 3660 of the Compiled Laws provides that, “an appeal from a justice's court shall not be effectual, unless an undertaking be filed with two sureties," etc. In the case of Murdock v. Brooks, 38 Cal. 604, the supreme court of that state, construing the same statute, said: “An undertaking on appeal is an independent contract on the part of the sureties, in which it is not necessary that the appellant should unite. He is bound by the judgment, and no purpose could be served by his joining with the sureties." We are of the opinion that the answer stated no defense whatever, for several reasons. First of all, the [199] failure of the principal to sign can in no possible manner injure the defendant. Section 3715, Comp. Laws Utah, provides that “when any surety upon an undertaking oni appeal pays the judgment, either with or without action,, after its affirmation by the appellate court, he is substituted to the rights of the judgment creditor, and is"entitled to control, enforce and satisfy such judgment in. all respects as if he had recovered the same.” It will be; observed that there is no further litigation necessary. The'' appellant here, if he pays the judgment which was rendered against the Mountain Ice & Cold Storage Company in the district court, is at once substituted to the rights of the plaintiff in this action, and is entitled to control, enforce and satisfy the judgment in all respects as if ha had recovered it. It would appear that his objection made by his answer is an extremely frivolous one. But there-are other reasons why the answer states no defense. The-answer sets out that Messick was the agent of the Mountain Ice & Cold Storage Company. It is not pretended, that he was the agent of the plaintiff. If it is true that the appellant has suffered any injury by the failure of the-corporation to sign the bond, still the case is one of those-where one of two innocent persons suffer by the acts of a. third. In such cases it is a familiar rule that he who has. enabled such third person to occasion the loss must sustain, it. See Herm. Estop. § 1000. Then, again, we think the defendant (appellant here)- has, by his own act, made-Messick his agent, and clothed him with the apparent, authority to make an unconditional delivery of the bond, and nothing short of notice to the plaintiff would avoid or vitiate it. See Id. § 1013. It is clear that the bond is a perfect bond under the statute. The plaintiff could not have dismissed the appeal in the district court for the want of a sufficient bond, because the bond was, in all respects, regular, and the fact' [200] that it nsed the words, “ We, the undersigned., as principal, and John Heil, Jr., and B. K. Bloch, sureties/’ was no notice to the plaintiff that the sureties had a secret agreement with the agent of the principal that the principal should sign before they should be bound. We think the order and judgment appealed from are right, and they are affirmed, with costs. BaRTCH and King, JJ., concur.