Farmers & Merchants Irrigation Co. v. United States Fidelity & Guaranty Co.

108 N.W. 156, 77 Neb. 144, 1906 Neb. LEXIS 26

• Court: Nebraska Supreme Court
• Decided: June 20, 1906
• Docket: No. 14,407
• Status: Published

Opinion

Jackson, C.

The appellant is a bonding company. It gave power of attorney authorizing Charles F. Horner, together with George C. Gillan, both of Dawson county, to execute and deliver bonds required in judicial proceedings. On October 5, 1903, the appellee recovered judgment before the county judge of Dawson county against Andrew Anderson, and, for the purpose of prosecuting an appeal to the district court, Anderson and his attorney applied at Mr. Horner’s office for an appeal bond. Horner was absent, but his clerk, after taking a property statement from Anderson and receiving payment of the premium, prepared and delivered to Anderson’s attorney a bond in due form, signed: “United States Fidelity & Guaranty Co., By Chas.. F. Horner, S., Attorney in Fact.” There is a conflict in the evidence as to the fact of delivery; Horner’s clerk testified to having told Anderson’s attorney that it would be necessary to secure the signature of Mr. Gillan to make the bond effective, while the attorney asserts with equal force that no such statement was made. His testimony has some support in the fact that no blank space appeared on the bond for Gillan’s signature. The bond was presented to tbe county judge, and by Mm approved October 10, 1903, and Anderson was thereby enabled to, and did, prosecute Ms appeal, wliich on March 13, 1904, was dismissed, and the fact of dismissal certified to the county court, where execution was issued and returned, “No property found.” From a judgment on the bond, the surety company appeals.

It interposed the defense that the power of attorney authorized the execution of bonds only by the joint act of Horner and Gillan, neither of whom, it is alleged, signed the bond in suit. It was disclosed in evidence that the bond, while appearing on its face to have been executed on behalf of the company by Horner as attorney, was in fact signed in his name by the. clerk. Mr. Anderson’s attorney, who was a witness on behalf of the appellee,'testified to a previous conversation with Sir. Horner relative to procuring bonds in judicial proceedings; he was told by Mr. Hor-ner that his clerk had authority to execute the bonds. This statement is not denied, and in view of the attitude of the appellant we do not think it important. Mr.. Hor-ner- was informed of the execution and delivery of the bond on the next day after the delivery. His testimony in that respect is: “Q. When Mrs. Slianklin told you about the execution of the bond, did you report its execution to the company? A. I did. Q. When? A. Immediately or nearly so, within a very short time.. Q. Did you report to them how the bond was executed, how it had been signed, or did you send them a copy of the bond? A. I sent them the application, and they then asked for a copy of the bond. Q. Did you furnish them a copy of the bond? A. I did. Q. Did you receive any communication from the company? A. I did. .Q. Is it not true that the company complained that you had not taken security enough for this bond? Wasn’t that the complaint that the company made? A. That is true.. Q. Is it not true that the company did not make any other complaint, except that you didn’t take security enough? A. That is also true. Q. You say you tendered back to Mr. Rhea the money. When did you do that? A. Well, it was a long time after this bond was executed, I really cannot say when. Q. By a long time, what do yon mean? Several weeks? A. Yes, sir; it was more than several weeks. Q.> Several months? A. I think so; yes, sir. Q. Did you go to the county judge and say to him that the bond had not been properly executed? A. I did not. Q. Never spoke to him about it? A. I think I did, but it was after the bond was approved. Q. How long after? A. It was some time after. Q. What do you mean by some time? A. Well, it was months after. Q. When you learned of the execution of this bond, did you go to the plaintiff in this case, or to myself as its attorney, or any of its agents, and inform them that the appeal bond had not been properly executed? A. I did not, unless Mr. Rhea was one of the parties named.”

The record discloses that Rhea was attorney for Anderson in the proceedings where the bond was obtained, and therefore did not represent the appellee.

Concerning the complaint about the bond, Mr. Rhea testified that there Avas a complaint made some time after the bond had been approved, that the company was not satisfied that it was secure, and requested him to have Anderson come in and give a chattel mortgage; that no one on behalf of the bond company ever tendered the premium back to him. It appears then that, with a full knowledge of all the facts, the bond company retained the premium, and made no complaint of any informality in the execution of the bond, and it should now be estopped from insisting on any such informality as a defense. It enabled Anderson to prosecute his appeal, the county judge, in good faith, approved the bond, and the appellee, relying upon the sufficiency of the bond, refrained from any attempt to enforce its judgment until after the dismissal of the appeal.

It is clear that the judgment of the district court is right, and we recommend that it be affirmed.

Duffie and Albert, CC., concur.

By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is '

Affirmed.