State v. Craig

12 N.W. 301, 58 Iowa 238

• Court: Supreme Court of Iowa
• Decided: April 22, 1882
• Status: Published

Opinion

Adams, J.

1. PRACTICE: transfer to equity docket. I. The appellant contends that the court erred in transferring the case to the equity docket. But it does not appear that the appellant demanded a jury trial ■ , * ... . ,, , T, ., or excepted to the ruling of the court, it is true c ... the appellant states m its abstract that it excepted, but no record entry is set out shofving such exception; and' the appellees, by an amended abstract, set out a copy of the entry containing the ruling upon the motion which does not show any exception taken. The correctness of the amended abstract is not denied and must be taken as true. _

' Eor anything that appears, then, the trial of the case as an equitable action, was satisfactory to the appellant. If we were of the opinion, therefore, that the appellee’s motion was improperly sustained, we should not he justified in reversing upon that ground.

2. OFFICIAL bond : alteration before delivery: sureties. II. Coming, then, to the merits of the case, we will first consider the liability of the sureties whose signatures were obtained subsequently to that of Geo. H. Smith, The appellant does not deny, and cannot properly deny, that the instrument signed by them was materially different from the instrument in suit. But the appellant contends that the instrument is the same now as when delivered, and that all the sureties must be deemed parties to the delivery, because Craig, who delivered the instrument, had been intrusted with it by them for that purpose; that they must be presumed, therefore, to. have assented to the delivery of the instrument as it was at that time, and cannot now be heard to complain.

The true idea, however, we think is, at least so far as the subsequent sureties are concerned, that Craig was not authorized to deliver the instrument after it had been altered to their prejudice. There is nothing in the nature of the transaction that can justify us in supposing that they contemplated anything of that kind. In no proper sense, then, can they be deemed parties to the instrument sued on.

III. When we come to the question as to whether the sureties can be held who signed before Geo. IT. Smith did, we find more difficulty. The bond with all the subsequent sureties released, differs in no material resqiect from the bond which the prior sureties signed.

If the understanding had been that the bond was to be delivered with their signatures and no one’s else, and afterward, and before the delivery, the signature of another person had been obtained and erased, there would be much ground for contending that the instrument was precisely their contract. But the bond had been put in circulation for the purpose of obtaining such number of signatures as Craig deemed necessary, and such number as should be found necessary to secure its approval. We may assume that the sureties in question, signed with the understanding that that number would be obtained, and it could not have been understood that that number was to be obtained in such a way that a portion of them could not be held. Yet that is what Craig did. If we hold for the appellant, a liability would be imposed upon the sureties in question more burdensome than they had any reason to anticipate. Their real contract was expressed by the bond as it stood when all the signatures had been obtained, and before the erasure. That is the instrument which we must suppose that the sureties in question authorized Craig to deliver. When, afterward, he not only released Smith by erasure of his name, but released all who signed subsequently to him, and then delivered the bond, we must hold that he acted contrary to the understanding of the sureties, in question and without authority. In our opinion, they are not liable. Our attention has been called to no adjudications which are precisely in point, but as tending to support the views which we have _ expressed, see Smith v. United States, 2 Wallace, 219; McCramer v. Thompson, 21 Iowa, 244; Dickerman v. Miner, 43 Iowa, 508.

We think that the judgment of the Circuit Court must be

Affirmed.