Lombard v. Mayberry.

turn them over to Smith as soon as he collected and paid the money into bank for us. A great deal of consultation was had between Mayberry, Smith, and myself as to permitting Smith to go on and close up the business, or taking it out of his hands entirely. I urged Mayberry to take charge of it, but he declined. It was finally agreed that, as the bond under which Smith was acting would expire June 1—this was then May 15—if he gave a new and satisfactory bond, and if his bondsmen were satisfied to go on and close up the business, we would consent to it. I went home, leaving affairs in that condition. He was to pay the $965 in a few days. He prepared a bond, which he sent to us, which was not satisfactory, from defects in the body. There were blanks for signatures, and the names of some of the signers were not written in, and for various reasons it was rejected. We prepared a bond, and sent it to Mr. Davidson, which is the bond returned to us, executed May 26, 1884. We had a good many consultations with Mayberry, subsequently, up to the time of Smith's arrest. At Mayberry's suggestion and agreement the notes were left with Mr. Davidson, in Tecumseh, and witness wrote to Russell & Holmes to turn over the notes in their hands, to be turned over to Smith, when due, as fast as Davidson thought to be safe. We did not want him to have too many at once, and yet wanted him to have those coming due, necessary to collect."

S. P. Davidson testified that, shortly after the 15th of May, 1884, the plaintiff's agent sent him the bond in question, which was handed to Smith for the signatures, of his sureties.

That several days afterwards Smith returned the bond with the signatures of the makers just as they now are. The witness sent it, by the first mail, in its present condition, to the plaintiff.

Charles N. Mayberry testified that, prior to May, 1884, he has been intimately acquainted with his co-defendant,

Lombard v. Mayberry.

Smith, for 15 years; that his own name on the bond in question was his signature.

On cross-examination, in reply to the question, "When and under what circumstances did you sign your name there?" the witness answered that "he signed it in Mr. Davidson's office, about the time of the date of the bond." Q. Who handed you the bond, and who handed you the pen and ink with which you signed it?

A.

Smith handed me the bond, and Judge Davidson handed me the pen.

Q. Was there anything said about the bond, or any examination made of it, by the parties there at the time?

A. I examined the bond, and I don't think there was anything said. Judge Davidson, if I remember, put the blotter on the bond, and then folded it up and put it away. I think it was in the same condition as it is now.

This is the weight of evidence of the relationship and concern of the parties to each other, and to the final execution of the bond.

It does not seem important to treat separately each of the errors assigned by the plaintiff at the trial.

The court charged the jury, at the request of the defendants, that if they found from the evidence that defendant Mayberry signed the bond, sued on, after the names of defendants Roberts and Reed appeared thereon, as obligors, and that defendant Mayberry believed that such signatures were genuine, but that such signatures were really forgeries, and if they further found that Mr. Davidson was then acting as agent for the plaintiff, and saw Mayberry sign such bond, and handed him the pen with which he was to sign the same, and did sign the same, then Mayberry is not legally bound by such bond.

To this instruction the plaintiff excepts in the 11th assignment.

It does not appear that the defendant, Mayberry, was either ignorant or ill-advised of the character of his prin

Lombard v. Mayberry.

cipal, and of his business transactions, but the evidence is that he was thoroughly acquainted with both. It was his privilege and opportunity to have made due investigation of the genuineness of the signatures. He examined the bond, and signed it without the superinducement of the plaintiff, or his agent, and without condition as to the signatures of others. It was primarily on his suggestion and interposition that the bond was taken, to supersede the former one on which he was a surety. Therefore, it would seem that an instruction, or inference, from the court to the jury that he was liable to suffer from a mistaken belief of the genuine signatures of his co-sureties may be deemed to have been prejudicial to the plaintiff, and to have deprived him of a fair trial. That Mayberry was not liable as a surety, under his mistaken belief, is not an accepted rule of law to warrant the plain charge of the court. The contract of the surety is to be strictly construed, and his liability would seem to be equal to that of the principal in this guaranty, and not less. The surety who signs an obligation, after the names of others, admits, without warranty, the genuineness of those signatures, and if the principal's or the co-sureties' names be forged without his knowledge, and without complicity of the holder, it is no defense to the surety that "he believed that such signatures were genuine." So, that if this rule be maintained by sufficient authority, the defendant, Mayberry, is indebted to the plaintiff, as the bona fide holder of the bond, though the names of Roberts and Reed were forged to it.

In the case of Selser v. Brock, 3 Ohio St., 302, it was held that where a fraud was practiced by a principal debtor in procuring a surety to sign a note, without the knowledge of the creditor, the obligation of the surety was valid and binding; and further, that a surety who had signed his name to a promissory note after the names of others, in effect affirmed the genuineness of the previous signatures, and could not avoid his liability by showing that they had

Lombard v. Mayberry.

been forged by the principal, but of which the creditor had no knowledge.

This precedent is wholly analogous to the case before us. It was affirmed in a later decision of Bigelow v. Comegys, 5 Ohio St., 256, wherein it was held that the surety on a replevin bond could not set up the defense that he was induced to sign the bond upon the fraudulent representation of the principals that a co-surety, who was responsible, had already signed it, when in fact his signature was a forgery.

The doctrine of the rule was thoroughly considered in the case of Helms v. The Wayne Agricultural Society, 73 Ind., 325, where the instructions to the jury were considered to have expressed the true rule in the proposition that, "when the name of one of two, or more, obligors in a bond, note, or other writing obligatory had been forged, the supposed co-obligor, though a surety only, and though he signed in the belief that the forged name was genuine, is nevertheless bound, if the payee, or obligee, accepted the instrument without notice of the forgery." This then is the law to be applied to the case at bar. It corrects the instructions as to the belief of the defendant, and as to the forging of the names of co-defendants, and holds the makers of the bonds to be liable to the plaintiff. It is supported directly, and in principle, by abundant authorities not important to further analyze in this opinion. Veazie v. Willis, 6 Gray, 90. York Co. M. F. Ins. Co. v. Brooks, 51 Me., 508. Franklin Bank v. Stevens, 39 Me., 532. Chase v. Hathorn, 61 Me., 505. Stoner v. Milliken, 85 Ill., 218. Hagar v. Mounts, 3 Blackford, 57. Harter v. Moore, 5 Blackford, 367. Carr v. Moore, 2 Ind., 602. State v. Van Pelt, 1 Ind., 304. Deardorff v. Foresman, 24 Ind., 481. State v. Pepper, 31 Ind., 76. Craig v. Hobbs, 44 Ind., 363.

The second clause of the instruction to the jury, "that if Mr. Davidson was found to be acting as agent for the plaintiff (being his attorney at law), and saw the defend

Lombard v. Mayberry.

ant sign the bond, and handed him the pen with which he was to sign it, and did sign it, then that the defendant, Mayberry, was not legally bound by such bond," is not a tenable proposition, but one that ought not to have been given in charge, and is of itself erroneous and misleading. That the act of courtesy charged, under the facts in evidence, could be deemed sufficient to predicate the complicity of the plaintiff, or his attorney, in the fraudulent execution of the bond, seems too remote and apocryphal for more serious consideration than the brief and emphatic overruling of the insinuation.

The court also charged that, "the acts and knowledge of the agents and attorneys of plaintiff that he had entrusted with the management of the business, which is the basis of the liability claimed in said bond, are the acts and knowledge of the principal, unless it shall be shown by the evidence that such agents and attorneys act without the authority of the principal;" also that if they should "find from the evidence that the plaintiff, by his agent, Mr. Davidson, showed the bond sued on in this case to defendant Mayberry, and handed him the pen for the purpose of having him sign the same, and also that the bond then had the signatures of the other defendants thereon, as obligors, and that Mayberry then believed such signatures to be genuine and signed his name thereto, on the face of such belief, then if they found from the evidence that the signatures on said bond of defendants Roberts and Reed were forgeries, and that fact was not known to Mayberry, then defendant Mayberry is not legally bound by such bond."

In addition to what is said above in regard to that part of the charge then under consideration, and which is also applicable to that part of it which is here quoted, it is also deemed to be erroneous and misleading, for the reason that there is no evidence in the case to which it is applicable. There is no evidence that "the plaintiff, by his agent, Mr.