Tidball v. Halley , 48 Cal. 610 ( 1874 )

By the Court, Rhodes, J.:

The plaintiff, who was the Collector of Internal Revenue for the Second District of California, appointed Halley as his deputy; and the bond in suit, as it is alleged, was given for the faithful performance by Halley of his duties as such deputy. The sureties alone answer; and they allege, among other things, that their signatures to the bond were obtained with the express understanding that it should be signed by certain other persons named in the answer, and that, without such execution by those other persons, the bond was not to be delivered. It is not alleged that this “ express understanding” was with the plaintiff, and the pleading will be construed as referring to the principal. It is not alleged that the plaintiff had notice of that understanding, or that there was anything which put him on inquiry; nor does the evidence in the case charge him with notice. The bond is in the following form:

“ Know all men by these presents, that we, John C. Halley, of Alameda county, principal, and J. 0. Goods, of Sacramento city, and E. D. Shirland, of Sacramento county, and-of-, as sureties, are held,” etc. There is nothing on the face of the bond to give the obligee notice that it was intended to be executed by any other person than those whose names are subscribed to it. This presents the principal question in the case, which is, whether a failure to comply with such an understanding between the principal and sureties, as is alleged in this case, will defeat a recovery on the bond as ■ against the sureties, when the obligee has no notice of such understanding, and no fact is brought to his attention sufficient to put him upon inquiry.

There is great diversity among the authorities on this question, and the cases on either side do not agree as to the reasons upon which the conclusion is based. We are of the opinion that Dair v. United States, 16 Wall. 1, and State v. Peck, 52 Me. 284, lay down the true rule on this subject; which is, that such facts as above stated will not defeat a recovery against the sureties. And this conclusion, we think, is sustainable upon principle.

No proof of the execution of the bond was required, as the defendants did not deny the allegation of the complaint that it was signed by them; and its production by the obligee is sufficient evidence of its delivery.

The tenth section of the Act of May 30, 1864 (13 U. S. Stat. at Large, 225), provides that a deputy-collector shall be appointed by an instrument in writing, but does not provide that the assignment of a portion of the revenue district to such deputy shall also be in writing; and, therefore, as we construe the statute, it was not essential that a written assignment of a portion of the district to Halley, as such deputy, be shown.

The other points do not require any particular notice.

Order granting a new trial reversed, and cause remanded:

Mr. Chief Justice Wallace did not express an opinion.