State ex rel. Hockaday v. Woods

84 Mo. 163

• Court: Supreme Court of Missouri
• Decided: October 15, 1884
• Status: Published

Opinion

Henry, C. J.

In October, 1878, James Harris was, by the probate court of Boone county, appointed guardian of the person, and curator of the estate of John W. Harris, minor heir of .John W. Harris, deceased, and on the 8th of October of that year executed his bond with defendant, Woods, as sole surety, in the penal sum of twenty-five thousand dollars, to secure the faithful discharge of his duties as such guardian, etc. In 1879, before any of the property of the ward came into his hands, at the urgent request of Woods, Harris went to the office of the probate judge, and, stating that Woods was uneasy, and wished Harris to get the other parties to execute the bond, requested' the judge to let him take the bond for that purpose, which was granted. Thereupon he procured the signatures of Ellis, Bass, Beazley, and Samuel to the bond, and this suit is upon that bond to recover against Harris’ s administrator and the parties to the bond an amount of money found to be due to the ward from Harris’s estate. The defendants, except Woods, pleaded the foregoing facts, and contended that there was no consideration for their promise, and, taking the same view, the circuit court so declared the law and there was a judgment for plaintiff against Woods, and in favor of the other defendants, from which plaintiff has appealed.

Counsel for respondents rely upon the case of Williams v. Williams, 67 Mo. 661, as supporting their position. In that case, the maker of a note had executed and delivered it to the payee, and subsequently, without any other than the original consideration for the note, it was signed by one Shelton who successfully defended the suit. That, and the class of cases to which it belongs, are distinguishable from the case at bar, in that here is “a continuing consideration, running with his (the guardian’s) continuance in office, and existed in full force at the time the instrument in question was signed.” U. S. v. Lynn, 15 Pet. 290; Wood, Adm'r, v. Williams et al., 61 Mo. 63, rests upon the same principle and can be upheld upon no other. There a second bond had been given by a surviving partner, executed by himself and one of the sureties in the first bond, together with a party who had not signed the first. The first bond had been approved by the court, and “the second was not given” in conformity “to any statute,” and did not relieve the sureties on the original bond. The surviving partner had used of the partnership assets three thousand dollars on his private account before respondents signed the bond, and the court held that the default of the surviving partner was as much a breach of the second as the first bond.

The cases relied upon by respondents involved the same principle announced in Williams v. Williams et al., supra, while this stands upon an entirely different ground.

The judgment is reversed and the cause remanded.

All concur.