People v. Hartley

" ___ ___,	[L.S.]
" Henry H. Hartley,	[L.S.]
" Wm. Green,	[L.S.]
" O. V. Chapman,	[L.S.]
" J. V. Hoag,	[L.S.]
" Mike Bryte,	[L.S.]
" W. G. Hunt,	[L.S.]
" Wm. Gordon,	[L.S.]
" ___ ___,	[L.S.]"

         The bond in the case of Sacramento v. Dunlap, as the Court there say, was " in form a joint bond only, and not joint and several," and the case was decided solely upon this distinction, the Court clearly holdingthat if the bond had been joint and several or several, the rule would have been different.

         The simple question then to determine, is, whether this is a several or joint and several bond, for if it is either, then the defendant is bound, whether the principal signed it or not. Our position is, that it is a several bond by its terms. It commences by saying we are held and firmly bound in the " several sums as hereinafter specified and affixed to our names." Here is a clear expression of an intention not to be jointly but only severally bound.

         It further states, " for the which payment, well and truly to be made, we severally bind ourselves, our heirs," etc. This is the portion of the bond in which the extent of liability, whether joint or joint and several, is usually expressed; and here the parties are careful to express their intention to be only severally bound. The word joint is not used in the whole instrument, but in all cases where the extent and nature of the liability is stated, the word several alone is used.

         It will not do to say that it is a joint bond as between the principal and each of the sureties, and several as between the sureties, for the word " several" in both instances qualifies the liability of each and all of the parties named in the instrument; whenever used it applies as clearly to Brooks as to any of the others.

         That in a several or joint and several bond, the parties executing it are bound, though all the persons named in the bond do not execute it, see Sacramento v. Dunlap (14 Cal. 421); Cutter v. Whittemore (10 Mass. 444); Parker v. Bradley (2 Hill, 586); Adams v. Bean (12 Mass. 139); State v. Bowman (10 Ohio, 445).

         JUDGES: Field, C. J. delivered the opinion of the Court. Cope, J. and Norton, J. concurring.

         OPINION

          FIELD, Judge

         The bond executed by Hartley and others embraces several distinct obligations. The principal and each of the sureties bind themselves in certain sums designated; and as we read the instrument, not jointly and severally, but only jointly. The term " severally," as used in the instrument, applies only to the different sums which the parties respectively specify as the limit of the liability they assume. Being a joint bond, the signature of the principal was essential to its validity and binding force upon the sureties. As we said of the bond in the case of the City of Sacramento v. Dunlap, (14 Cal. 423) so we may say of this: " The liability of the sureties is conditional to that of the principal. They are bound if he is bound, and not otherwise. The very nature of the contract implies this. The fact that their signatures were placed to the instrument can make no difference in its effect. * * Some one must have written his signature first; but it is to be presumed upon the understanding that the others named as obligors would add theirs. Not having done so, it was incomplete and without binding obligation upon either." (See Bean v. Parker et al. , 17 Mass. 591; Wood v. Washburn, 2 Pick. 24; Sharp v. United States, 4 Watts, 21; Fletcher v. Austin , 11 Vt. 447; Johnson v. Erskine, 9 Texas, 1.)

         The defects in official bonds, which may be cured upon their suggestion in a complaint, do not embrace the absence of the signature of the principal obligor. Without his signature the instrument is not his deed. There is no bond of his in which defects can be suggested and cured.

         These considerations dispose of the case, and render it unnecessary to notice any of the other points discussed by counsel.

         The judgment must be reversed and the Court below directed to enter judgment for the defendant upon the demurrer to the complaint; and it is so ordered.