State Ex Rel. Howell v. Parsons

89 N.C. 230

• Court: Supreme Court of North Carolina
• Decided: October 5, 1883
• Status: Published

Opinion

Ashe, J.

When parties subscribe their names as obligors to a bond in the-presence of a witness or acknowledge their signatures to him, and he is called upon to witness the instrument as their act and deed, they arc bound by all the stipulations in said bond whether their names are set forth in the body of the instrument or not, in the absence of any agreement at the time of its execution that they are not to be bound, unless certain conditions are complied with. Here, the bond was signed and delivered by all the defendants with the understanding, and the legal intendment, that they were to be bound for the performance of all duties required by law of their principal in said bond; and to sustain their defence to this action would be to allow them to escape liability upon a most flimsy technicality.

The facts in the case of Vanhooks v. Barnett and others, 4 Dev., 268, are very similar to those in this case. There, a new trial was moved for at the instance of Barnett, one of the defendants. His name was not mentioned in the body of the bond, nor did the bond begin with the words, “We are held and firmly bound to R. V., &c.,” but it began thus: “Know all men by these presents, that John Garner, Carey Williams and Richard H. Burton are held and firmly bound unto R. ~V-, &c.” At the bottom of the paper were the signatures and seals of Garner, Williams, Burton and Barnett. In the body of the printed form there had been a blank left for the insertion of the names of the ■obligors, and the name of Barnett had been omitted in filling up the blank. This court held that Barnett by signing and sealing the instrument became bound in the bond if it was afterwards delivered.

An adjudication in the state of New Hampshire is in perfect accord with that of this court. In Pequawkett Bridge v. Mathes, 7 N. H., 230; 26 Am. Decisions, 737, it has been held, that it is not necessary that the names should appear in the bond. If the •obligors, in witness of their obligations to perform certain covenants and conditions, have affixed their hands and seals to the instrument, it is sufficient to bind them.

The question, we think, is fully settled by these authorities, and our conclusion therefore is, that there is no error, and the judgment of the superior court must be affirmed.

No error. Affirmed.