Sullivan v. Williams

21 S.E. 642, 43 S.C. 489, 1895 S.C. LEXIS 188

Opinions

The opinion of the court was delivered by

Me. Justice Pope.

W. E. Sullivan, as plaintiff, on the 2d day of August, 1892, instituted an action against James T. Williams and Alexander Stuart, as defendants, in the Court of Common Pleas for Greenville County, in this State, to recover judgment against said defendant for the sum of$ll,447,12, with interest from 14th day of July, 1890, on $10,882.21, and for costs. The action came on for trial before his honor, Judge Witherspoon, and a jury, in such court on the 29th day of March, 1894, and resulted in a verdict for the plaintiff for $14,274.07. After entry of judgment thereon, the defendants appealed to this court.

The plaintiff, in his complaint, as his cause of action, substantially alleges that Susong & Co., composed of George W. Susong, W. A. Susong, A. E. Susong, James H. Eumbough, and D. L. Boyd, were indebted to him in the year 1887 in the sum of $10,518.26, and that immediately thereafter he brought his action against such firm for the collection of his said debt in the Court of Common Pleas for Aiken County, in this State. That inasmuch as said defendants, Susong & Co., and every partner thereof, were non-residents of this State, but as the firm and two partners thereof had real and personal estate within the counties of Aiken, Edgefield, Abbeville, Laurens, and Green-ville, in this State, such plaintiff procured to be issued, in his said action, by the clerk of the Court of Common Pleas for Aiken County, a warrant of attachment against the property of said firm of Susong & Co., and of the two defendants, George W. Susong and David L. Boyd, as members of said firm of Susong & Co., within said counties, and that thereunder the sheriff of Aiken, Edgefield, Abbeville, Laurens, and Green ville Counties, respectively, did attach such property of Susong & Co., and such property of George W. Susong and David L. Boyd, within their respective counties. That when this was done, thereupon an agreement was entered into between W. E. Sullivan and Susong & Co., whereby, in consideration of a bond being made by the members of the firm of Susong & Co., with James T. Williams and Alexander Stuart as sureties, in the penal sum of $21,050, conditioned that they would, jointly or severally, pay whatever judgment might be recovered by the said W- E. Sullivan in his action against Susong & Co., such attachment of the property of Susong & Co., and of the said George W. Susong and David L. Boyd, were released. That W. E. Sullivan, in his said action against Susong & Co., recovered a judgment on circuit, which was affirmed on appeal to the Supreme Court, for $11,375.62, with interest from July 14, 1890, or $10,882.21, and also $61.50 as costs of appeal, which said sums and every part thereof the said Susong & Co., and the partners thereof, have not paid. And that upon demand therefor upon the said James T. Williams and Alexander Stuart, they, each, have refused payment.

The defendants, James T. Williams and Alexander Stuart, in their answers, admit that George W. Susong, W. A. Susong, A. E. Susong, James H. Bumbough, andD. L. Boyd, copartners in business as Susong & Co., were non-residents of this State in 1887, when the action of Sullivan against them was begun; that Susong & Co., being indebted to plaintiff, Sullivan, as stated by him, said Sullivan, on 17th June, 1887, made application for writs of attachment against the real and personal estates of George W. Susong, W. A. Susong, A. E. Susong, James H. Bumbough, D. L. Boyd, and Susong & Co., as non-resident debtors, and that such application for attachments were regular in all respects; that such attachments were issued by W. M. Jordan, Esq., as clerk of the Court of Common Pleas for Aiken County, in this State, as hereinbefore stated; that W. E. Sullivan, as plaintiff, in his said action against the said George W. Susong, W. A. Susong, A. E. Susong, James H. Rumbough, and D. L. Boyd, composing the firm of Susong & Co., as defendants, obtained his judgment against said defendants in the Court of Common Pleas for Aiken County, S. C., on 14th July, 1890, for the sum of $11,375.62, as hereinbefore stated; and that Jas. T. Williams and Alexander Stuart are residents of this State. But these defendants denied that the sheriffs of Aiken, Edgefield, Laurens, Abbeville, and Greenville Counties, respectively, did attach certain property of Susong & Co. within their respective counties; that on the 27th day of July, 1887, in order to discharge the attachments in question, the said W. E. Sullivan and Susong & Co. did come to an agreement whereby upon the execution of a bond in favor of W. E. Sullivan, under the hands and seals of the several partners composing the firm of Susong & Co., dated 27th July, 1887, and delivered on 1st August, 1887, to the proper officers, such attachments were released; that upon the delivery of said bond, the said attachments were duly discharged, the attached property mentioned in the bond released, and the said bond then delivered by the said officers to the plaintiff; and that by the bond given by these defendants they obligated themselves, jointly and severally, in the penal sum of $21,050, for the payment to the plaintiff of such judgments as plaintiff might recover in his action against Susong & Co.

These defendants, Williams and Stewart, in their answers, allege substantially, as a second defence, that in the body of the bond referred to in the complaint (the bond given in attachment proceedings), the names of George W. Susong, W. A. Susong, A. E. Susong, James H. Rumbough, and D. L. Boyd, are set out as principals, while the names of James T. Williams and Alexander Stuart only appear as sureties; that when presented to them (Williams and Stuart), George W. Susong was the only name of said principals which had then signed said bond; that these defendants signed said bond upon the distinct understanding that it should be executed by all the persons named in its body, before it should be delivered or filed, to be used as a basis of an application to discharge the attached property, and that such execution should be evidenced and proved in due form of law; that after signing said bond, these defendants did not see it again until a few weeks before the commencement of this action; that they are informed and believe, that the names of W. A. Susong and A. E. Susong, which appear as signers thereof, were not written there either by themselves or by any other person duly authorized so to do, and that such W. A. and A. E. Susong now dispute their liability upon said bond, and refuse to be bound thereby; that the other persons named as principals on said bond are insolvent, but that W. A. and A. E. Susong then were, and now are, men of considerable wealth. That these defendants knew of their means at the time they signed the said bond, and the knowledge that they must execute said bond before it should become effective, was what induced these defendants to sign the same; that the execution of said bond on the part of the persons named as principals was not proved or acknowledged as required by law, nor was said bond approved by the clerk of the court for Aiken County, when these defendants had a right and did expect that these formalities should be complied with before the bond should become effective, and that they did not and would not have waived the same; and that if the plaintiff accepted said bond without a compliance with the law in said respects, all damages resulting therefrom are attributable to his own negligence, and not to these defendants; that these defendants signed the said bond with the understanding that when it should be executed by all persons named therein as obligors, and after all persons named as defendants in Sullivan v. Susong & Co. had appeared in such action, it should be used in an application on the part of the principals to the officer who had issued the attachment, or the court, for an order discharging the property from such attachment, and was for such purpose alone that these defendants signed the said bond. No such application was made either to the officer who issued the attachment, or to the court, for an order discharging the attached property, and no such order has been passed; that if the attached property has ever been discharged from said attachment, it was by the voluntary act of the plaintiff, and not in the manner provided by law and contemplated by these defendants; and these defendands deny that they ever consented to be bound by said bond, except upon the conditions set forth above, all of which the plaintiff was fully advised of by the recitals of the said bond and the provisions of law, and was otherwise informed by these defendants. They allege that all these provisions were important and material to their protection on their relation as the sureties upon said bond; that they deny that they authorized delivery of said bond in its present condition, and they allege that said bond is void and of no effect.

When the cause was being tried, certain testimony was offered by the plaintiff which on objection was ruled incompetent by the trial judge, and testimony was offered by the defendants which upon objection was ruled incompetent by the trial judge. Exceptions to such ruling were duly noted, and these exceptions form a part of defendants’ grounds of appeal. The defendants moved for a nonsuit, which motion was overruled. This furnishes an additional basis for an appeal. Lastly, the defendants presented sundry requests to charge, and whenever these were declined by the Circuit Judge, an appeal was based upon such refusal. The following are the grounds of appeal:

1. Because his honor, the presiding judge, erred in not granting the nonsuit requested by the defendants for the following reasons: (a) Because, we respectfully submit, that under the evidence the bond sued upon in this action, so far as it affects these defendants, must be deemed a statutory obligation given in pursuance of statute, for the purpose of effecting a discharge of the attachment referred to in the complaint, and the said bond had not been used in.the manner contemplated by statute or by the defendants herein at the time of the execution thereof, in that the bond was never delivered to the clerk of court of Aiken County, as contemplated by the statute and by the defendants, and was never received, accepted or filed by said clerk, (b) Because the signatures of the makers of said bond, and more particularly of W. A. Susong and A. E. Susong, were never probated or acknowledged in like manner as deeds of real estate, as required by the rules of the Circuit Court in this State, and such bond could never, therefore, have been lawfully received, accepted or filed by said clerk, (c) Because even if said bond, as contended by plaintiff, had, by agreement between the plaintiff and the principals therein, been diverted from the statutory course, and had by such agreement been delivered to the plaintiff instead of said clerk, and if the requirements of law as to the manner of execution and the filing and accepting by the clerk had been waived by the said principals, such agreement and waiver could not affect these defendants unless they themselves had notice thereof before delivery of said bond, or unless the defendants waived the said requirements and assented to the use of said bond in a manner not contemplated by statute; it being submitted that as to these defendants the said bond must be presumed the statutory obligation, in the absence of testimony that these defendants had knowledge of a use not contemplated by statute and assented thereto, and of this there is no evidence, (d) Because there was no evidence tending to show that the bond was executed by W. A. Susong, or A. E. Susong, or by any one by them authorized.

2. Because his honor erred in allowing the introduction of the telegram of W. C. Benet to Henderson Bros., and of their reply to the same; also, in admitting the testimony of M. F. Ansel as to transactions between W. C. Benet and himself — it being submitted that all this testimony was irrelevant and incompetent as tending to convert the said bond from a statutory obligation, which those defendants had a right to presume it was, into a voluntary obligation, there being no testimony showing that this was “brought home to defendants.”

3. Because his honor erred in excluding the testimony of Mrs. A. E. Susong when first offered, to the effect that the signature of A. E. Susong to the said bond was a forgery.

4. Because his honor erred in holding that there was nothing-on the face of said bond to give sufficient notice to the plaintiff herein, or to Ansel and Mosely, his agent, that the defendant herein had signed said bond upon condition that W. A. and A. E. Susong would also sign the same, and in excluding, therefore, the evidence of A. E. Susong, to the effect that he had never signed the said bond, but that his signature thereto was a forgery.

5. That his honor erred in holding that the defendants could not avail themselves of the forgery of W. A. and A. E. Susong to said bond unless they show that the plaintiff had notice of such forgery, or of all the facts concerning it; and he, therefore, erred in excluding the testimony of Mrs. A. E. Susong as to said forgery.

6. Because his honor erred in holding that no testimony, and more particularly the testimony of Mrs. A. E. Susong, could be introduced to prove the signature of A. E. Susong to said bond, notwithstanding the fact that the rule requiring the probate or acknowledgment of the signatures to said bond had not been complied with, and, therefore, the palming off of a forged signature to said bond rendered probable, or at least more possible, in consequence of the neglect of plaintiff or his agents in accepting said bond uncompleted according to law.

7. Because his honor erred in holding that the testimony of the defendant, James T. Williams, did not disclose any condition between himself and Geo. W. Susong, D. L. Boyd, and James H. Bumbough, to the effect that the bond was not to be delivered until signed by W. A. and A. E. Susong; and that the names of said W. A. and A. E. Susong, appearing in the face of the bond as co-makers thereof, he erred in excluding the testimony of Mrs. A. E. Susong and other testimony offered by these defendants to the effect that the said A. E. Susong never signed the bond, and that his signature thereto was a forgery.

8. Because his honor erred in holding that the condition made with Boyd, Bumbough, and G. W. Susong by Jas. T. Williams, prior to his signing said bond, to the effect that he would only sign on condition that W. A. and A. E. Susong also signed said bond, was not brought home to the plaintiff by the testimony of Jas. T. Williams, and, therefore, in excluding the testimony of A. E. Susong when offered the second time, whereas he should have submitted that question to the jury-

9. Because his honor erred in excluding testimony offered by these defendants to the effect that the signature of A. E. Susong, as it appears on the said bond, bore on its face evidence of forgery, which should have excited the inquiry of plaintiff or his agents before they accepted said bond.

10. Because his honor charged the jury: “If you conclude from the evidence that there was any agreement between Susong and these two parties here, that cannot bind or prejudice the rights of the plaintiff (Sullivan), unless it was made to appear that it was brought home to Sullivan, or unless this defendant signed it with the condition that it was signed by W. A. and A. E. Susong, and this condition was brought home to the plaintiff.”

11. Because his honor erred in refusing to charge, as requested by the defendant: “That if a surety is called upon to sign a bond given for the purpose of affecting a discharge of attachment, his contract is presumed to be the statutory bond for that purpose, unless there appears on the face of the bond something to warn the surety that the bond is to be used for a purpose and in a manner not contemplated by statute.”

12. Because his honor erred in refusing to charge, as requested by these defendants: “That the bond sued upon in this action has nothing on its face to warn a surety that it is not the bond contemplated by statute to procure a discharge of an attachment. And in that case, unless the jury believe from the evidence that the sureties, the defendants in this action, at or before the signing of said bond, bad information of the proposed use of such bond in a manner and for a purpose not contemplated by statute, the defendants in this action are presumed by law to have obligated themselves only in the .manner evidenced by their bond when construed in connection with the laws of this State, and the rules of this court having reference to such bonds.”

13. That his honor erred in refusing to charge these defendants’ fourth request to charge, and in holding that whilst-such request stated correct principles of law, they had no application to this case, such request being as follows: “That section 263 of the Code, the section having reference to the giving of bonds for the purpose of discharging attachments, contemplated that such bond shall be used on an application to the court or officer who issued the'attachment fora discharge of the same. It contemplates delivery to, and approval by, the court or such officer.”

14. That his honor erred in refusing to charge defendants’ fifth request, and in holding that while such request stated correct principles of law, it had no application to this case, such ’ request being as follows: “That the attachment in the present case was issued by the clerk of the court of Aiken County, so that if the provisions of the act had been followed, the bond would have been delivered to, and approved by, him or the court.”

15. That his honor erred in refusing to charge these defendants’ sixth request to charge, and in holding that whilst such request stated a correct proposition, it would not affect this case or, in other words, it would not discharge the liabilities of these defendants on this bond, that request being as follows: “That rule of the Circuit Court provides: ‘All bonds and undertakings shall be duly proved by a subscribing witness, or acknowledged in like manner as deeds of real estate, before the same shall be received or filed.’ ”

16. Because his honor erred in refusing to charge these defendants’ seventh request to charge, and in holding that whilst such request stated correct principles of law, it had no application to this case, such request being as follows: “Under this rule it would have been necessary before this bond could be lawfully received by the officer issuing the warrant of attachment or the court, that its execution should be proved by the oath of a subscribing witness or acknowledged in like manner as deeds of real estate. It would have been the duty of the officer or the court before receiving the bond to see that this requisite-had been complied with, and to have declined to receive it unless such proof of its execution had been furnished.”

17. Because his honor erred in refusing defendants’ eighth request to charge, to wit: “That the provision of law contained in such rule is intended for the protection of all persons interested in the due execution of the bonds or undertakings made in the course of judicial proceedings; that it is for the protec fcion of the obligee of the bond, but also for the protection of sureties therein, tending to preserve to those signing such bonds their right of contribution from, or exoneration by, those whom they have a right to expect will sign such bonds with themselves, and serving to protect the sureties signing from frauds, by preventing or making less probable the forging the names of others whom they in law had the right to expect would sign such bond before it would be binding on. themselves.”

18. That his honor erred in refusing these defendants’ ninth request to charge, to wit: “That if the jury believe from the evidence that the defendant had no knowledge or information that this bond was to be used for the purpose and in the manner not contemplated by statute, and did not assent to such use, then their liabilities thereunder will be determined only as though this bond were a statutory bond, given for the purpose of discharging an attachment. In such case, if the bond was not delivered to the clerk of the court of Aiken County or to the court, and was not proved by the oath of a subscribing witness, or acknowledged in like manner as deeds of real estate, and was not filed with the clerk of the court for Aiken County, if none of these things were done, then the provisions of law have not been complied with, and the bond is void as to these defendants, unless the jury find from the evidence that they waived the requirements of compliance with these conditions.”

19. Because his honor erred in refusing to charge these defendants’ nineteenth request to charge, and whilst admitting the effect of the proof referred to in such request, saying: “I hold it not necessary to have such on this bond.” Said request being as follows: “In determining this question of negligence, in case you conclude that the bond was so entrusted by these defendants, you must consider all the circumstances surrounding the case, and in this connection I charge you that the provisions of law requiring all such bonds to be proved by the oath of the subscribing witness before they should be received, is calculated to prevent the palming off of a false signature, and the defendants had the right to expect that such proof should be made before the bond was received.”

We will discuss these exceptions in the following order:

First. The admission by the trial judge of testimony in behalf of plaintiff excepted to by defendants. Second. The denial of defendant’s motion for a nonsuit. Third. The.refusal by the trial judge to admit certain testimony offered by the defendants. Fourth. The refusal by the trial j udge to charge certain requests presented by the defendants.

1 First. The plaintiff offered to show the circumstances attending the execution of the bond which procured the release of the property attached. To this the defendants objected. The bond was approved by Mr. Ansel, a member of the Greenville Bar. It was in the handwriting of Mr. Benet, an attorney at that time practicing at the Greenville Bar, and as such was the attorney of Susong & Co. The testimony was intended to explain these matters. Such testimony in no wise impinged upon the terms or provisions of the bond itself. We cannot see that it was incompetent. Hence the second ground of appeal is dismissed.

2 Second. At the close of plaintiff’s testimony, defendants moved for a nonsuit, which was refused. Was this error? The proposition that the Circuit Judge should not grant a nonsuit if there is any testimony, legal testimony, to support plaintiff’s cause of action, is admitted on all hands here. But the question presented by defendants is that attachment proceedings are purely the creature of statute; that such attachment proceedings under the statutes of this State may be released by the giving of a bond or undertaking in double the amount sued for, with two sureties, who shall justify by the clerk of the court in the county where the action is pending, or by a judge in such action. And further, that Buie 66 provides that, before such bond can be filed, the same shall be approved by the clerk who issued the attachment, and also shall be probated, as is required of deeds to real estate before being recorded, to wit: by the affidavit of one of the subscribing witnesses. That these defendants being only sureties had the right to insist as a condition precedent to any liability thereunder that this bond should be subjected to the requirements of the statute in the particulars before recited, and especially that the release of the property attached should have been made by the clerk at Aiken, or a judge, and that as the testimony of the plaintiff failed to show affirmatively such a compliance with such statutory requirements, the defendants were entitled to a nonsuit. We think this position is untenable in the case at bar. There is no doubt but that the law in existence at the time of the creation of a contract and pertaining thereto, enters into the obligation as a part thereof, but appellants overlook the fact that at the time of the execution by them of this bond, the law in this State allowed such proceedings in an attachment to be released so far as property attached was concerned, by a bond at the common law. Plaintiff in his proof did not show that such release was under any order of court. On the contrary, he showed that the attachment was released by Mr. Ansel, as the agent of the plaintiff. The first ground of appeal must be dismissed.

3 Third. Defendants sought to introduce testimony to show that the bond in question was signed by the defendants upon the express condition that A. E. Susong and W. A. Susong also should sign the same, but the trial judge ruled such testimony incompetent, unless the fact of such signing by the defendant, on condition that W. A. and A. E. Susong each should sign the same, was brought home to the plaintiff himself, or some one representing him. Was this error on the part of the judge? It is always better to have the circumstances of the case before us when we are called upon to pass upon a question of law which is to govern the solution of such a contest. In the case at bar, George W. Susong and D. L. Boyd were in the city of Greenville, as was also Bum-bough, but the other two members of the firm of Susong & Go. lived in East Tennessee. All the property attached was in this State, and the proceedings in attachment under which the firm assets as well as the property of the two partners, George W. Susong and D. L. Boyd, were located in this State, and the action in which the attachment was procured being in a State court, was limited to the State’s territory. Under these circumstances, George W. Susong sought out James T. Williams and Alexander Stuart, and represented to them that he would have to execute a bond to secure the release of such firm assets as well as the property of two of the firm from this attachment. No one else was present when this application to Williams and Stuart to become sureties was made. Both Williams and Stuart contend that they agreed to become sureties for the firm upon a distinct understanding that A. E. and W. A. Susong would become obligors thereon. Confessedly no notice of this condition was imparted to Sullivan, or any agent of his. We do not hesitate to say that if this was all in the case, we would say the judge was right; but this is not all, for the bond itself said that W. A. and A. E. Susong was each one member of the firm of Susong & Co., and each one was therein secured as an obligor. From this view of the case, it was immaterial that Williams and Stuart acquainted Sullivan or his agent with the condition upon which they signed; and thus we are met with the

4 Fourth subdivision. Was it competent for Williams and Stuart to prove that the names of W. A. Susong or A. E. Susong were forged to such bond? That this is a joint and several bond, in our judgment is immaterial, for the effect of its being joint or several would only relate to the remedy, namely, the ability of Sullivan as obligee to bring his action against the obligors jointly or severally upon the happening of the condition to the bond. It would not extend so as to fasten a liability upon each obligor named in and signed to the bond, whether such signatures were forged or not. We mean this — that whether the liability of the obligors to this bond be joint or several, does not reach the question which has to be decided in order to hold these sureties liable. It is a far different and more serious question, and one which has caused very deep concern to courts in their effort to settle the law governing such a matter, in a manner that will protect sureties and at the same time preserve the rights of obligees. It is not to be wondered at, that there has existed a contrariety of opinion amongst courts on this subject, but nevertheless it is to be deplored as adding to the criticism that the law is uncertain.

We may begin the discussion by admitting that sureties are favored in the law. But this is true only to the extent that such sureties are entitled to all the protection flowing from the negligence, fraud or misconduct of the obligee, and to stand on their contract “slrictismi juris,” and not that they are not to be treated as original promisors along with their principals, being debtors from the beginning. “He must see that the debt is paid, and he is held ordinarily to know of every default of his principal.” Bayliss on Sureties and Guarantors, at page 5. Of course, the rights and duties are held different in the law as to negotiable and unnegotiable instruments. On the former, his liabilities are to be determined under the law merchant; in the latter, mainly under equitable principles. Under such unnegotiable instruments as bonds and other specialties, the pivotal instrument is the delivery of the instrument, for around this as a centre revolve conditions that will be respected, notice of conditions in the instrument itself, and such like defences. In the case at bar, the sureties seeing in the body of the bond the names of George W. Susong, D. L. Boyd, J. H. Bumbough, A. E. Susong, and W. A. Susong, as obligors along with their own, Williams and Stuart, were clothed by law with the right to insist that the names of all these should appear as signers of the bond before any liability -on their part attached. Not that they could insist in a private agreement with any of their co-obligors that any other names than those named in the bond should sign to make the obligations binding upon them, for it made no difference what private agreements they had with their co-obligors to limit or fix their liability under the bond, unless such private agreements should be communicated to the obligee or his agents. But the obligee and his agents were bound at their peril to see that the names of every person set out in the bond should sign the same before such bond clothed the obligee with an enforcible contract against the surety.

This, however, being admitted, does not settle the equities between the obligee and the sureties under the bond here. It seems that after George W. Susong signed the bond in question, and without waiting for any other signatures, these two sureties signed the same, and justified that they were worth the penalty of the bond, $21,050. Of course, it will not for a moment be contended that such a premature act on their part made them liable; it is fixed law that it did not. However, when it is re membered that this bond could not operate until its delivery, and that these two sureties placed said bonds in the hands of George W. Susong and others to have the same completed before its delivery, and such sureties thereby, in law, made such co-obligors their agents — not the agents of the obligee — to procure such signatures; and when, as they contend, such signatures of A. E. and W. A. Susong were forged to such bond, and in that condition the bond was delivered to Sullivan, the obligee, or his agent, does there not arise an equity in Sullivan whereby he can say: Grant that the bond which when presented to me or my agent, Mr. Ansel, for acceptance, although entirely regular on its face as having been executed by A. E. and W. A. Susong, yet in fact their names were forged thereon and thereto, this will not avail you as a defence, and you are estopped from proving such forgery, because, “when one of two innocent persons must suffer, the loss must fall upon him who put it in the power of a third person to cause such loss; as well as upon the principle that when an agent is clothed with apparent authority to do an act, he may bind his principal within the limits of that authority, whatever may have been his private instructions.” Fowler v. Allen, 32 S. C., 236. It is true, that Mr. Justice Mc-Iver was discussing a negotiable instrument in the case last cited, yet when he used this language, he precedes it with the remark that ‘ ‘the proposition does not rest alone upon the peculiar character of negotiable papers, put upon the well settled principle” as above quoted.

It would seem, therefore, that Williams and Stuart, the defendants, having made George W. Susong and the other coobligors their agents to procure the signatures of W. A. Susong and A. E. Susong, and their names being forged as signers of the bond while it was in the hands of their agents before its delivery to the payee or his agent, that the principle above quoted, when one of two innocent parties must suffer, the loss must fall upon him who put in the power of the third person to cause such loss, will make them liable, and forbid their offering proof that the names of W. A. Susong and A. E. Susong, or either of them, were forged as signers of the bond.

Before fortifying the foregoing declaration of the law by quoting from adjudged cases and respectable authors, it maybe as well to point out the hardship to the plaintiff of any other construction of the law applicable to this case. Here the plaintiff has secured the payment of his debt by seizing the property of this firm and two of its members, within the jurisdiction of the courts of this State, and by his honest reliance upon the bond delivered to him, he surrendered his lien upon all the attached property, not only that of the firm of Susong & Co., but also of that attached of George W. Susong and D. L. Boyd as individual partners in said firm. The plaintiff has complied with his duty under the bond, and has pursued this firm and every member of such firm until he has a valid judgment against them for the amount originally sued for, and this after one of the most fiercely and closely contested litigations that has occurred in our courts. See 30 S. C., 395; 36 Id., 287; 40 Id., 154. And now, after having complied with his duty in every respect, the fruit of his victory is to be wrested from him by the assertion by the sureties of a fad that their principals are interdicted from setting up themselves in their own behalf. And with no allegation in the pleadings, or any proof tendered at the trial to show, that the plaintiff was guilty of any negligence, or misconduct, or laches, or notice, or knowledge of any irregularity or fraud.

Let us now briefly refer to the law, as settled by decisions and approved authors. 1st. A bond operates from its delivery. “There is a distinction to be observed between the effect of the delivery of negotiable and non-negotiable paper. The one is governed by the law merchant, and the other by the law governing other contracts. But delivery is essential to the validity of a bond or other non-negotiable paper.” Bayliss on Sureties and Guarantors, 98; Wild Cat Branch v. Ball, 45 Ind., 213; McPherson v. Meek, 30 Mo., 345; Ayres v. Milroy, 53 Id., 516; State v. Young, 23 Minn., 551; Hall v. Parker, 37 Mich., 590. And this doctrine is impliedly recognized in the case of Gourdin v. Read, 8 Rich., 232; Mills v. Williams, 16 S. C., 593.

2d. A bond to which there are several obligors, some of whom, as between themselves, are principals and other sureties, and when delivered to the obligee has signatures of obli gors different from those that appear in the body of the bond, is notice to the obligee whereby the surety to such bond may be released from any liability thereunder, unless proof is made that such surety waived such defect before delivery. Mr. Bayliss, in his work on Sureties and Guarantors, at pages 212, 213, says: “So, if the bond bears upon its face evidence that it is an incomplete instrument, or there is something in the attendant circumstances showing knowledge or its equivalent on the part of the recipient that the instrument was not to be delivered until other signatures were obtained or other acts done of equal importance, the delivery of the instrument will create no liability as against one who executed it on the express condition that it should not be delivered to the obligee until the instrument was complete, or the other signatures obtained or other stipulated acts done.” The case of Pawling v. United States, 4 Cranch, 219, is an apt illustration of this doctrine, for, in the case quoted, Todd, a surety, wrote the names of those persons with whom he was willing to become sureties on Ballinger’s bond, and called on those who witnessed his signature to remember this fact. Signatures of others than those named in the bond itself were afterwards obtained without Todd’s knowledge or acquiescence. The court, per Marshall, G. J., sustained Todd’s right to prove those facts in his exoneration as an obligor of the bond. In United States v. Leffler, 11 Peters, 86, the foregoing case was recognized. State Bank at Trenton v. Evans, 3 Green (N. J.), 155, was a case where one who was named in the body of the bond, did not sign the same, and the court held that the surety incurred no liability thereunder.

3d. A bond which purports to be made by several persons who are named in the body of the bond as obligors, and which after being executed by the sureties therein named and left with the principal to be completed and then delivered to the obligee, is presented to and delivered to the obligee fairly executed, with nothing to warn such obligee either by word, act or in the instrument itself that any one or more of the names of the obligors named therein, and who had to sign the same after such sureties had already subscribed the same, were forged, but which forgery occurred while the instrument was in the hands of a co-obligor and before delivery to the obligee, is a valid obligation of such surety, and he is estopped in an action thereon against him to allege and prove that the name of one or more of his co-obligors was forged to such instrument. Mr. Bayliss, in his work on Sureties and Guarantors, at page 211, says: “The current of the later decisions is to the effect that, where a surety places an instrument perfect on its face in the hands of the proper person to pass it to the obligee, the law justly holds that the apparent authority with which the surety has clothed him, shall be regarded as the real authority; and as the condition was unknown to the obligee, therefore, the benefit of such condition shall not avail the surety.” Russell v. Freer, 56 N. Y., 67; State v. Potter, 63 Mo., 212; Nash v. Fugate, 24 Gratt, 202; Dair v. United States, 16 Wall, 1; Butler v. United States, 21 Id., 272; Smith v. Peoria County, 59 Ill., 412; State v. Peck, 53 Me., 291; McCormick v. Bay City, 23 Mich., 457; Cutler v. Roberts, 7 Neb., 4.

In this connection, it may be well to distinguish the principles really entering in to make up the decisions by our own court of Gourdin v. Read, 8 Rich., 232, and Mills v. Williams, 16 S. C., supra. In the first case cited, a surety, Bead, had signed a bond, leaving the payee or obligee’s name in blank, and entrusted such unfinished instrument to his principal, one Commander, to negotiate a loan. When Commander approached Gourdin to negotiate a loan of money from him on this bond, this blank was unfilled, and after Gourdin consented to make the loan, the principal, Commander, in his presence, filled in the blank space with Gourdin’s name. When action was brought by Gourdin against Bead on this bond, he defended on this ground, and the additional ground that he had revoked the verbal power he had entrusted Commander with to fill in the payee’s name. Under these circumstances, it is very evident that Gourdin was put upon notice to inquire by what authority Commander placed his name upon said bond as the obligee thereof. This was good law then, and it is good law now. It falls under the head of those cases where the instrument itself furnishes notice, so that inquiry may be made as to the power of the principal obligor to act for his surety. So it is in the second case just cited, Mills v. Williams, 16 S. C., supra. In the sealed note then in contention, it was in evidence that the note on its body stated the value received to be a mule, and the payer’s name was left unfilled. One of the obligors gave the note for a horse to a different person than that from whom the mule was to be purchased. This court held that both the obligor and her sureties, other than that one who negotiated for the purchase of the horse, were released. This decision was correct, for here the instrument itself, being non-negotiable in two particulars, served notice upon the obligee that he was taking the risk himself in such transaction, for the consideration expressed in the note was the purchase of a mule, and the name of the payee was left blank.

So, too, the case from Massachusetts of Russell v. Annable, 109 Mass., 72 (s. c., 12 Am. Rep., 665), is perfeetly consistent with these principles, and was properly decided, as we shall now show. In a case where an attachment had been sued out upon the partnership property, a bond was prepared in which each partner was stated as an obligor, and one Annable signed as a surety thereto, but the principal obligors were parties thereto only by one partner signing the firm name opposite the seal. No ratification of this use of the firm name by the other partners was contended for, and, in fact, it was not true. Here, therefore, there was expressed notice to the obligee that, under the law — and every one is presumed to know the law — such a bond was a nullity, and the surety when sued claimed the benefit of this patent defect on the face of the bond, giving notice to the obligee thereof; and, of course, the court decided that he was released from all liability thereunder. If it is desired, this doctrine will be found to be fully sustained in King County v. Ferry (Wash.), 32 Pac. Rep., 528; Helms v. Wayne Ag. Co., 38 Am. Rep., 147 (73 Ind., 325); State ex rel. Brown v. Baker, 27 Am. Rep., 214; Stern v. People, 102 Ill., 541; Lombard v. Mayberry, 24 Neb., 674; Bank v. Stevens, 39 Me., 532; State v. Hewett, 72 Mo., 603; Mathis v. Morgan, 58 Am. Rep., 847; Wood v. Ogden, 16 N. J., 453.

Fourth. A bond signed by one or more of several obligors, but signed by the surety before all the obligors have signed, but not delivered to the obligee until after all have signed, is esteemed in law to be entrusted by the surety to his obligors as agents to procure the completion of the bond. “In these cases of conditional agreement, it is the surety who puts trust and confidence in the principal and not the obligee; and if any one is to be the loser it should be the surety, for he puts it in the power of the principal to create the mischief complained of. The bond having been accepted and acted upon, the surety is estopped from setting up an unperformed and undisclosed condition. The eases before cited all proceed upon the ground that there is nothing upon the face of the bond, as diselqsed by the attending circumstances, to apprise the obligee or accepting officer of a state of facts which should prevent its acceptance.” State v. McGonigle (Mo.), 20 Am. St. Rep., 612. “The law makes the principal the agent of the surety for the delivery of the bond.” Jordan v. Jordan, 10 Lea, 124 (43 Am. Rep., 299), and cases there cited. Carroll v. Ruggles Co., 58 Am. Rep., 226. The principle is recognized in our own case of Fowler v. Allen, supra.

The judgment should be affirmed. It is the judgment of this court, that the judgment of the Circuit Court be affirmed.