Hickman v. C. H. Fargo & Co.

42 P. 381, 1 Kan. App. 695, 1895 Kan. App. LEXIS 187

• Court: Court of Appeals of Kansas
• Decided: November 9, 1895
• Status: Published

Opinion

The opinion of the court was delivered by

Johnson, P. J.':

The first question for the consideration of the court is, whether an undertaking to release a debtor from imprisonment under § 511 of the code of civil procedure, where the bond runs in the name of the debtor as principal and two other parties as sureties, and is executed by the sureties alone, is a valid obligation. Section 511 reads as follows :

“Any person imprisoned under the provisions of this article shall be entitled to prison bounds, which shall be coextensive with the county, upon executing an undertaking, with one or more sufficient sureties to be approved by the sheriff, to the effect that if the debtor go beyond the prison bounds before being discharged according to law, he will pay to the plaintiff the amount of the execution, with interest and costs ; but in case the person shall be out of jail, in prison bounds, the judgment-creditor, upon whose judgment he-was imprisoned, shall be entitled to execution against the lands and tenements, goods and chattels of the debtor,.and all other remedies prescribed by this code for the collection of debts.”

Counsel for plaintiffs in error contend that a bond running in the name of several persons, one as principal and the others as sureties, and subscribed only by the sureties, is an incomplete instrument, and that those signing it as sureties cannot be bound unless the principal also be bound; that the statute authorizes the arrest and imprisonment of a debtor for fraud and provides for his release from confinement in prison, extending to him certain prison bounds, and prescribing the terms and conditions upon which he may be released from imprisonment and be permitted to go anywhere in the boundaries of the county in which he resides, and if he be released by the sheriff without signing the bond as required by the statute, the bond is void; that the debtor, not having executed the bond, is under no legal or moral obligation to remain within the prison bounds unless he has been legally placed therein on the execution of the bond required by law; that the bond being incomplete, either party might repudiate it; that, being a contract of surety-ship, it could not exist without the correlative obligation of the principal, and that were the sureties to pay the amount of the bond they could not be subrogated to the rights of the plaintiff in the judgment. In order to comply with § 511 of the code of. civil procedure, the sheriff should have required the debtor to sign the bond before he released him from imprisonment. The undertaking in this case is not a statutory obligation; but does that render this bond void? The debtor was imprisoned under an order of the court finding that he had fraudulently disposed of his property to defraud his creditors ; that the sureties voluntarily entered into this obligation to secure his release from imprisonment; that they obligated themselves that if the said C. 0. Randolph should go beyond the boundaries of Sumner county before being discharged according to law, they, the said sureties, would pay the said C. H. Fargo & Co., plaintiffs, the said sum of $842.60, said judgment, together with $121 costs thereon, and all costs that should ■ accrue on said judgment and all interest thereon; that by reason of the execution of this obligation they secured the release of the said C. C. Randolph, and he was permitted to go at liberty anywhere within the prison bounds. While this does not conform to the statute, it is certainly a good common-law obligation, and the sureties are bound by the terms of this bond. In the case of Ingram v. The State, 10 Kas. 635, Valentine, J., delivering the opinion of the court, says :

“We think the said instrument is sufficient as a recognizance, notwithstanding these supposed defects.

. It was given by the parties as such. The parties call it such in the instrument itself, and it was taken and approved by the officer as such. It is true that that portion of the instrument which contains the obligation is in the form of a penal bond, and not in the form of a recognizance. . . . The defendants signed and executed this instrument, and it was not necessary in order to bind them that D. A. Ingram should have signed or executed it.”

In the case of Tillson v. The State, 29 Kas. 456, Philip Masterson was arrested on a complaint charging him with an assault with intent to commit a rape, and was taken before George M. Everline, a justice of the peace, for a preliminary examination. The examination was continued, and W. S. Tillson signed an obligation that Masterson would appear-at the time to which the case had been adjourned to answer such charge. Masterson did not sign the bond of recognizance for his own appearance, and it was contended for that reason that the bond was void ; that Master-son, not having entered into the recognizance himself, there was no obligation on his part to appear; and that, Masterson not being obligated to appear, his surety was not bound. The supreme court says :

‘c The point that the recognizance is void because the accused did not sign the same we think is not tenable. At common law it was never necessary for any person to sign the recognizance ; and under the statute it is necessary only for those to sign the recognizance who are bound thereby ; and it is never necessary under the statutes for the accused to sign the recognizance, unless the statutes absolutely require the same to be done. ... In this state every recognizance is several as well as joint, and any one or more of the persons who sign the same may be sued for a breach thereof. Even where the accused signs the recognizance as well as a surety, the surety alone may be sued without joining his principal with him. Of course, under § 45 of the criminal code, it would be very proper for the accused as well as the surety to sign the recognizance ; and possibly it would be the duty of the magistrate in all cases to require him to do so; but his failing to do so we do not think will render the recognizance void as against the surety.”

We do not think that this bond is so incomplete as to render it absolutely void, but think that it is good as an obligation against these sureties.

The second reason assigned by the plaintiffs in error why plaintiffs below could not recover on the undertaking sued on in this action is that the petition alleges —

“That on the 21st day of April, 1880, the plaintiffs below, by the consideration of said court, obtained a judgment duly rendered against one'C. C. Randolph for the sum of $842.60 damages, and the further sum of $21 costs of suit, while the execution upon which C. C. Randolph was arrested recites a judgment rendered on the 22d day of April, 1880, being the fourth judicial day of the term of the court, for the sum of $842.60 and for the further sum of $121 costs of suit, and the undertaking of these plaintiffs in error recites a judgment rendered on the 22d day of April, 1880, in favor of C. H. Fargo & Co., against C. C. Randolph, for the sum of $842.60, and the further sum of $121 costs of suit, and the sureties promise, agree and thereby bind themselves that, if C. C. Randolph should go beyond the prison bounds before being diséharged according to law, they would pay to the said C. H. Fargo & Co., plaintiffs, said sum of $842.60, said judgment, together with $121 costs thereof ; and the record of judgment produced in evidence on the trial of this case recites a judgment rendered in favor of C. H. Fargo & Co., against C. C. Randolph, for the sum of $842.60, and the further sum of $29.15 costs of suit. Done at Wellington, Kas., in said county, on the 21st day of April, 1880, said day being the third judicial day of the April term of said court.”

No principle is more firmly settled than this — that sureties may stand on the very terms of the undertaking or bond they executed. The sureties in this case obligated themselves that in case C. C. Randolph should go beyond prison bounds before he was discharged according to law, they would pay the judgment and costs-stated in the execution and in the undertaking, and not a judgment rendered at some other time and for a different amount. They did not agree or promise to pay a judgment rendered on the 21st day of April, 1880, the third judicial day of the term of court, but a judgment rendered on the 22d day of April, the fourth judicial day of the term, and for a' different amount. While it is true the judgment and costs stated in the petition of the plaintiffs below and in the copy of the record introduced in evidence on the trial of the case were for a smaller amount than the one referred to in the execution upon which O. C. Randolph was arrested, and the one set out in the prison bond, yet it was not the judgment and costs that these sureties obligated themselves to pay, if C. C. Randolph went beyond prison bounds, and they are not liable to pay any other judgment than the one stated in the bond. A surety is entitled to a strict and literal performance of the contract that he signs. There are no equities against h¿m, and he is only bound by the letter of his agreement. (Chitty on Contracts, 529.)

In the case of Miller v. Stewart, 9 Wheat. 702, Story, J., delivering the opinion of the court, says :

“Nothing can be clearer, both upon principle and authority, than the doctrine that the liability of a surety is not to be extended by implication beyond the terms of his contract. To the. extent and in the manner and under the circumstances pointed out in his obligation he is bound, and no further. It is not sufficient that he may sustain no injury by a change in the contract, or that it may even be for his benefit. He has a right to stand upon the very terms of his contract; and if he does not assent to any variation of it, and a variation is made, it is fatal. And courts of equity, as well as of law, have been in the constant habit of scanning the contracts of sureties with considerable strictness.”

In the case of Lang v. Pike, 27 Ohio St. 501, Ashburn, J., delivering the opinion of the court, says:

“No principle is more firmly settled in this state than this, that sureties may stand on the very terms .of a statutory 'bond or undertaking. So clearly has this doctrine been announced and acted upon, that it may be regarded as entering into the condition of such an undertaking, that it will not be extended by the courts beyond the necessary import of the words used. It will not be implied that the surety has undertaken to do more or other than what is expressed in such obligation.”

The supreme court of Ohio, in the case of Hall v. Williamson, 9 Ohio St. 17, holds :

"In a suit against a surety on an injunction bond, conditioned for the payment of all moneys due or to become due upon a* judgment for the sum of $2,300 and costs in favor of the obligee and against the principal in case the injunction should be dissolved, the plaintiff could not give in evidence a judgment for $2,346.06 and costs, although in other r.espects it answered to the judgment mentioned in the conditions of the bond.”

The judge, delivering the opinion of the court, says :

‘ ‘ The action was against the surety, and a recovery could therefore only be had against him strictly upon the contract into which as surety he had so entered. The surety upon the injunction bond being in nowise liable upon the judgment, and having received no consideration for executing such bond as surety, ought not in equity, and could not in law, be holden to the judgment-creditor except by force of the obligation as clearly expressed by the terms of the ' bond which he had so voluntarily executed. No principle of law is better settled generally, and none has been more explicitly interpreted in this state, than that a surety can only be bound by the terms of his undertaking.”

In the case of the Bank of Steubenville v. Carrol’s Adm’rs, 5 Ohio, 207, the court says :

"No principle is better settled at the present day than that a surety cannot be further bound than by the terms of his undertaking.”

And again, in the case of The State v. Crooks, 7 Ohio, 573, Judge Hitchcock, in giving the opinion of the court, uses the following language :

“No principle is better settled, perhaps, than that securities shall not be bound beyond the scope of their undertaking.”

In the- case of The State v. Medary, 17 Ohio, 554, in giving its opinion in relation to the liability of the sureties upon their bond, the court says :

“ The bond speaks for itself, and the law is that it shall so speak, and that the liability of sureties is limited to the exact letter of the bond. Sureties stand upon the words of the bond, and if the words will not make them liable, nothing can; there is no construction and no equity against sureties.”

In the. case of Ryan v. Williams, 29 Kas. 487, 497, the action was originally commenced in the district court of Leavenworth county by H. T. Green, as administrator of the estate of Theodore Jones, deceased, against Jacob McMurtry, to recover a certain amount claimed to be due from McMurtry to Jones at the time of Jones’s death; during the pendency of this suit the district court ordered the plaintiff, Green, as administrator, to give security for costs, which the plaintiff, H. T. Green, as administrator, did by cost bond signed by Matthew Ryan, and, after giving bond for costs, H. T. Green, administrator, resigned, and Robert Adams was duly appointed and qualified as successor of Green, and the action was afterward revived in the name of Robert Adams, as administrator of the estate of Theodore Jones, deceased; and thereafter a trial was had in said action, and resulted in a judgment being rendered in favor of the defendant and against Robert Adams, as administrator, etc., for costs of suit. The costs of suit not being paid, a motion was filed by the defendant, and, on proper notice given in accordance with the provisions of § 585 of the civil code, asking that judgment be rendered in favor of the defendant and against Matthew Ryan, the surety on the cost bond for the amount of costs, the motion was heard by the court, and judgment was rendered against Ryan for all costs in the action, to which judgment he duly excepted and took the. case to the supreme court, and the supreme court held the judgment erroneous. Valentine, J., speaking for the court, says :

“ We think the judgment in the present case is erroneous. Many courts hold that a surety on a bond is liable only within the strict letter of his bond, and no court holds that a surety is liable beyond the reasonable implications of his bond. The bond in all cases must speak for itself, and sureties may always stand upon its literal terms, or upon its literal terms and its reasonable implications, and if these do not make the surety liable, nothing else can. No farfetched equities nor overstrained constructions are allowable as against sureties. Their bond expresses their contract, sets forth their obligation, and defines their liability, and we are not at liberty to resort to extraneous matters to enlarge their liability. In the present case, Ryan did not bind himself to pay any costs except súch as might be included in. a judgment rendered against Henry T. Green, as administrator of the estate of Theodore Jones, deceased.”

The case of Hays v. Closon, 20 Kas. 120, was an action on an undertaking in proceedings in error from the judgment of a justice of the peace in an action for unlawful detention of real estate. The surety signed an undertaking that he would pay for the use and occupancy of the real estate from the date of the undertaking until the plaintiff in error should deliver up possession pursuant to the judgment and pay costs. The proceedings in error' were decided adversely to the plaintiff in error and he was evicted from the premises, and suit was brought against the surety on the undertaking, and on trial judgment was rendered against him for rents that had accrued before the execution of the undertaking, to which he duly excepted, and brought the case to the supreme court for its decision. Horton, C. J., says :

‘ ‘ The makers of the bond never agreed to pay any rents which were due at the execution of the written instrument signed by them, and the district court had no power to increase or enlarge the terms of such instrument to their prejudice. The law will not create a liability against sureties which they did not intend to bring on themselves and which is not within the express conditions of the bond.”

In the case of Henrie v. Buck, 39 Kas. 385, the supreme court holds :

“The obligors upon the bond are mere sureties, and they have a light to insist upon the express terms of the undertaking. It is a recognized rule of the law that the liability of sureties to a statutory undertaking cannot be extended by implication, nor enlarged beyond the express terms of their contract.”

The case of Grant v. Naylor, 4 Cranch, 225, was a suit in assumpsit on a letter of credit addressed to John and Joseph Naylor.& Co., England, requesting them to furnish goods, wares and merchandise to John Hackett, for the firm of Hackett & Grant, the writer guaranteeing the payment of such goods as they might sell said firm. Goods were sold to this firm on the faith of this letter of credit; but there was no such firm at Wakefield, England; by the name of John and Joseph Naylor & Co. The names of the members of the firm were John and Jeremiah Naylor & Co. Marshall, 0. J., delivering the opinion of the court, says :

‘' In this case three points are made by the plaintiff in error on the letter which, constitutes the basis of this action. He contends, 1st. That this letter being a collateral undertaking, and being addressed to John and Joseph Naylor & Co., the plaintiffs below cannot be admitted to prove by parol testimony that it was intended for and is an assumpsit to John and Jeremiah Naylor. 2d. That the undertaking was conditional, and. required notice to be given to the writer of the intent and nature of his liability. 3d. That it is confined to the shipments made during the year in which it was written. On the first objection the court has felt considerable difficulty. That the letter was really designed for John and Jeremiah Naylor cannot be doubted, but the principles which require that the promise to pay the debt of another shall be in writing, and which will not permit a written contract to be explained by parol testimony, originate in a general and a wise policy which this court cannot relax so far as to except from its operation cases within the principles. ... It being the opinion of a majority of the court that John and Jeremiah Naylor could not maintain their action on this letter, it becomes unnecessary to consider the other points which were made at the bar.”

The third and last reason urged by the plaintiffs in error why the plaintiffs below should not recover in this case is that, notwithstanding they were not bound by the undertaking signed by them to pay the judgment recited in the petition of plaintiffs helow and contained in the copy of the record produced on the trial of the case, in September, 1881, C. C. Randolph was released from his imprisonment under said afrest by an order of the judge of the district court, at which time the attorneys for the plaintiffs below were present and made their exceptions to the order ; and, also, that on the 24th day of January, 1882, the judge of the district court again made an order discharging C. C. Randolph from his prison bounds, which is as follows :

“And now, on motion, comes said defendant, C. C. Randolph, by his attorneys, Herrick, George & Graham, the plaintiff appearing specially and objecting to the consideration of this motion for the reason that the judge of said court has no power or authority to entertain or hear the same ; which objection was overruled and excepted to. Defendant asked to be released from prison bounds; and it appearing that the said defendant, C. C. Randolph, heretofore committed to prison bounds in said county by virtue of an execution against his person in the above-entitled action is bereaved of a sister, who died January 23, 1882, and is desirous of attending her funeral: It is therefore ordered that the said C. C. Randolph be and is hereby released from his said prison bounds until the 24th day of February, 1882. To which order the plaintiff excepted. Witness my hand at chambers, at the city of Winfield, Kas., January 24, 1882. — E. 8. Torrance, Judge.”

Section 514 of the code of civil procedure confers jurisdiction on rhe judge of the district court to discharge from imprisonment a debtor who has been arrested and held to prison bounds, on such terms as are just. (Randolph v. Simon, 29 Kas. 411.)

The debtor having given notice of his application for a discharge, and the parties all being present, the judge made the two several orders discharging him and giving him permission to go to the state of Illinois and beyond the prison bounds. This certainly was a discharge from prison bounds, for which sureties had obligated themselves that if said C. C. Randolph went beyond the boundaries of Sumner county before he was discharged according to law they would pay the judgment and costs.. Having been duly discharged by proceedings properly had before an officer having jurisdiction to discharge, we do not think that his sureties could be longer held upon their undertaking. They only undertook that he would not go beyond the prison bounds until discharged under due process of law, and being once discharged and permitted to go it released his sureties under their undertaking. The sureties were only held by the express conditions contained in their bond ; the defendants not being liable for the payment of the judgment rendered on the 21st day of April and the costs of suit thereon, it follows that the plaintiffs below were not entitled to a judgment in this case.

The case is reversed and sent back to the district court with directions that judgment be entered for the defendants for costs of suit.

All the Judges concurring.