1. Where several persons sign a bond to the government as surety
for a government officer, which bond, statute requires shall be
approved by a judge, before the officer enters on the duties of his
office, an erasure by one of the sureties of his name from the bond
-- though such erasure be made
before the instrument is
submitted to the judge for approval, and therefore while it is
uncertain whether it will be accepted by the government, or ever
take effect -- avoids the bond, after approval, as respects a
surety who had not been informed that the name was thus erased, the
case being one where, as the court assumed, the tendency of the
evidence was that the person whose name was erased signed the bond
before or at the same time with the other party, the defendant.
2. Any unauthorized variation in an agreement which a surety has
signed, that may prejudice him, or may substitute an agreement
different from that which he came into, discharges him.
An act of Congress, relating to marshals of the United States,
[
Footnote 1] provides, that
"before" the marshal enters on the duties of his office,
he shall become "bound" for the faithful performance of the same,
before the judge of the District Court of the United States,
jointly and severally, with sufficient sureties,
"to be
approved by the district judge."
With this act in force, Pine was appointed marshal and gave bond
on which the name of
Smith and others had been signed, and
appeared as sureties. Suit having been brought against the marshal,
Smith, and the others, his sureties, in the circuit court
for the Northern District of Illinois, upon this bond, Smith
pleaded that the bond was not
his deed.
On the trial the United States offered the bond in evidence. The
instrument showed on the face that it
had been signed by a
certain Hoyne as one of the sureties, but that his name was now
erased. The defendants, accordingly, objected to the admission of
the bond in evidence, on the ground that there was an erasure and
alteration thereon, which it was the duty of the plaintiff to
explain. The plaintiff then called the district judge, who had
approved the bond. The learned justice testified that when it was
brought
Page 69 U. S. 220
to him for approval, it presented the same appearance exactly as
it did now at the trial, except that the names of the sureties were
inserted by him in the first part of it; that it was brought either
by one McGill or by the defendant, Pine; that Pine had difficulty
in getting sureties, and had, some time before, told him, the
witness, that Hoyne had objections to having his name on the bond,
and Hoyne afterwards told him the same thing. The judge had not
then seen it. Afterwards it was brought to him, with Hoyne's name
erased. Not knowing the signatures of all the parties, he held the
bond several days, and all the sureties came in and acknowledged
the execution of it before him,
except the defendant,
Smith. He then approved the bond, and being personally
acquainted with Smith's writing, certified to the genuineness of
the signatures. The bond was then admitted in evidence, under
objection.
At a subsequent stage of the trial the defendant, Smith, called
the district judge as a witness, when he testified that some time
before the approval of the bond by him, Hoyne stated to him that he
had signed the bond, with others, for Pine, but that he had become
dissatisfied, and that McGill and Pine had both agreed that his
name should be taken off -- that he wanted it off, and was not
willing it should remain on the bond. The witness said, further,
that when the sureties who acknowledged the execution of the bond
appeared before him, he might have called their attention to the
erasure of the name of Hoyne, but was not positive; was inclined to
think he did; thought he handed it to each one of them, and asked
them if they signed it; he didn't know that they read it.
Hoyne himself testified that "he signed the bond --
which
was circulated for signatures -- with others;" but that soon
after, and before its approval, he became dissatisfied, and
requested McGill and Pine to have his name erased; and that they
promised to do this. Not being able himself to get the bond to do
it, and knowing that it would have to be approved by the district
judge, he went to that officer and informed
him of his
wish; said he had signed it, and wanted
Page 69 U. S. 221
to have his name erased &c. The judge told him, that in
justice
to the other signers, he should tell them that he
wanted his name off; that accordingly, in a very short time, he,
the witness, spoke to
all the parties who had signed,
except Smith, who was absent, and told them that he wanted
his name off. A few days after, in response to his inquiry, the
judge told him that his name had been erased. When it was done, and
by whom, he did not know.
On this state of facts, the counsel of the defendant, Smith,
requested the court below to charge, among other things, as
follows:
1. That if the jury believed, from the evidence, that the name
of Hoyne was erased from the bond in suit, without the knowledge or
consent of him, the defendant, Smith, and that he, Smith, did not
acknowledge the bond as his, subsequently to such erasure, the jury
should find in his favor.
2. That the law places the burden of proving such consent upon
the plaintiffs, and if they have failed to make such proof, they
are not entitled to a verdict.
The court refused so to charge, and the defendants excepted.
Verdict and judgment having gone for the United States, the
defendants took this writ of error.
Page 69 U. S. 226
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
This case comes before the Court upon a writ of error to the
Circuit Court of the United States for the Northern District of
Illinois. Suit was instituted by the United States, and the record
shows that it was an action of debt on the official bond of Charles
N. Pine, late marshal of the United States for the district where
the suit was brought. Service was not made on the principal in the
bond, nor on four of the sureties as named in the declaration. Of
those served, three were defaulted, and the remaining three, Thomas
Hoyne, William B. Snowhook, and Ezekiel S. Smith, appeared and made
defense. First two pleaded -- 1,
non est factum; 2,
performance by principal. Smith filed separate pleas -- 1,
nil
debit; 2,
non est factum. Issue was joined upon those
several pleas, and the parties went to trial. Verdict and judgment
were for the plaintiffs, and the defendants excepted and sued out
this writ of error.
I. Record shows that the plaintiffs, at the trial, offered the
bond described in the declaration in evidence, to prove the issue
on their part, but the defendants objected to the reading of the
same as inadmissible, because, as they alleged, it had been altered
by the erasure of the name of one of the sureties. Yielding to that
objection, the plaintiffs called the
Page 69 U. S. 227
district judge, and examined him as a witness. He testified to
the effect that the bond, when it was brought to him for approval,
was precisely as it appeared when offered in evidence, except that
the names of the sureties were inserted by him in the introductory
part of the instrument. His statement was that it was brought to
him for approval either by the marshal or his principal deputy, and
that the erasure as described was there, just as it appeared at the
time the witness was examined. Witness did not see the bond till it
was brought to him for approval with the name erased; but he had
previously been informed, both by the marshal and the person whose
name was erased, that the latter had objections to having his name
remain on the bond. Signatures of some of the parties not being
known to the witness, he held the bond for several days after it
was presented, and during that time all of the sureties, except the
defendant, Smith, came in and acknowledged its execution. Whereupon
the witness approved the bond agreeably to the certificate in the
record, which is under his signature. Substance of the certificate
is that all of the parties to the instrument, except the defendant,
Smith, acknowledged the genuineness of their signatures; and that
the district judge, being satisfied from his own knowledge and from
evidence that the signature of Smith also was genuine, approved the
bond. Being asked by the defendants if Smith had ever consented to
the erasure, the witness answered that he had no knowledge upon the
subject. Relying on the explanations given by the witness, the
plaintiffs again offered the bond in evidence, and the court,
overruling the objections of the defendants, admitted the same to
be read to the jury, which constitutes the first exception of the
defendants.
Certain Treasury transcripts were also produced by the
plaintiffs, exhibiting the official settlement of the accounts of
the marshal at the Treasury Department, together with the statement
of certain Treasury warrants and drafts in his favor, showing a
balance due to the plaintiffs. Evidence was then offered by the
defendants tending to show that the settlement of the marshal's
account as stated in the Treasury
Page 69 U. S. 228
transcripts, was not correct. Most of the documents offered for
that purpose were objected to by the plaintiffs, and were excluded
by the court. Defendants excepted to the rulings in that behalf,
but in the view taken of the case it will not be necessary to
examine the questions which the exceptions present.
Having offered evidence upon the merits, they recalled the
district judge, and examined him again as to the erasure. Among
other things, he testified that before he approved the bond, the
person whose name was erased told him that he had signed it with
others for the marshal, and that he had become dissatisfied, and
wanted his name taken off; that the marshal and his deputy had both
agreed that his name should be erased, and that he was not willing
that it should remain.
Same parties also called and examined Philip A. Hoyne, whose
name was erased from the bond. Material statements of the witness
are that the bond was circulated for signatures by the principal
deputy of the marshal, and that the witness signed it with others
at that time; that he, the witness, became dissatisfied some days
before it was approved, and requested to have his name erased, and
that the marshal and his deputy promised to do it; that not being
able to get hold of the bond, he mentioned the subject to the
district judge, and explained to him that he "could not consent to
have it there at all." Suggestion of the judge was that he, the
witness, in justice to the other signers of the bond, should see
them and tell them what he wanted, and the witness stated that in a
short time he spoke to all of them except defendant, Smith, who was
then absent, and told them that he wanted his name erased, and that
he was not willing to let it remain there as one of the sureties.
Erasure was made before the bond was approved, but when, or by
whom, the witness did not know.
II. Theory of the defendant, Smith, was that he was discharged
from all liability on the bond in consequence of the erasure, and
he accordingly wished the court to instruct the jury in substance
and effect as follows:
1. That if the jury
Page 69 U. S. 229
believed from the evidence that the name of P. A. Hoyne was
erased from the bond in suit, without the knowledge or consent of
the defendant, and that he did not acknowledge the bond as his,
subsequent to such erasure, the jury should find the issue in his
favor.
2. That the law places the burden of proving such consent upon
the plaintiffs, and if they have failed to make such proof they are
not entitled to a verdict.
3. That notice of the erasure to the district judge who approved
the bond was notice to the government. But the court refused so to
instruct the jury, and the defendant excepted.
III. Principal question for decision arises upon the exception
of the defendant to the refusal of the court to instruct the jury
as requested in the first prayer presented by the defendant.
Tendency of the evidence plainly was to show that the person,
whose name was erased, signed the bond before or at the same time
with the defendant. Nothing else can be inferred from his own
testimony, in which he states that he signed with others at the
time the bond was circulated for signatures; and his ready
acquiescence in the suggestion of the district judge, that in
justice to the other signers he ought to see them and tell them
what he wanted, strongly favors the same view. Testimony of the
district judge also confirms that theory, and makes it certain that
all had signed before the erasure and before any interview had
taken place between him and the person whose name was erased.
Record does not show who made the erasure, but the proof is
satisfactory that the marshal and his deputy agreed to do it, and
that it remained in the possession of one of them, until it was
presented to the district judge for approval.
Defendant insists that the erasure from the bond of the name of
one of the sureties after Smith had signed it, and without his
knowledge or consent, and before the approval of the bond, was
sufficient to discharge him from all liability
On the other hand the plaintiffs, although they concede
Page 69 U. S. 230
that the erasure was after the defendant had signed the bond,
and that it was done without his knowledge or consent, yet insist,
that inasmuch as the erasure was made before the bond was approved
by the district judge, it left the liability of all concerned
precisely as it would have stood, if the person whose name was
erased had only promised to sign and had not fulfilled his
engagement.
Proposition as stated may be correct as applied to all the
sureties who subsequently appeared before the district judge, and
acknowledged the bond as altered to be their deed, and it certainly
is correct as to the person whose name was erased. Liability cannot
attach to the person whose name was erased before the instrument
was approved, and all those who subsequently consented to remain
liable, notwithstanding the alteration, are estopped under the
circumstances to interpose any such objection. They have waived the
effect which the alteration in the instrument would otherwise have
had, and consented to be bound, and therefore have suffered no
injury.
Volenti non fit injuria. Granting all this, still
it must be borne in mind, that the alteration in this case was
without the knowledge or consent of the defendant, and the case
shows that he never appeared before the district judge and
acknowledged his signature, or in any manner ever waived the right
to insist that the instrument was not his deed. Materiality of the
alteration is not denied, and the plaintiffs admit that it is
apparent on the face of the instrument, but still they insist that
inasmuch as the marshal, before he enters on the duties of his
office, is required by law to become bound before the district
judge with sufficient sureties for the performance of the
conditions, it is clear that the bond is in no manner executed,
until it is presented to the district judge and is by him approved.
[
Footnote 2] Approval, say the
counsel, is as essential to its execution, as is the acknowledgment
made in court to a recognizance, and the argument is that no
alteration made in the instrument before such approval, can have
the effect to
Page 69 U. S. 231
discharge anyone of the sureties, unless it be shown that it was
made with the knowledge or consent of the obligees. Reason for the
conclusion, as suggested by the plaintiffs, is that where the
alteration precedes the approval, the presumption is that it was
made by a stranger, and not by the party seeking to enforce the
obligation.
Support to the proposition, as stated, is attempted to be drawn
from the case of
United States v. Linn, [
Footnote 3] and it must be confessed that
there are expressions in the opinion of the majority of the court
which give some countenance to that view of the law. Question in
that case arose upon the demurrer of the plaintiffs to the plea of
the defendants, and the judgment of the court was in fact based
upon the ground that the allegations of the plea were insufficient
to establish the defense. Alteration charged in that case was that
the seals had been attached to the signatures after the instrument
was signed and before it was delivered, and the allegations of the
plea were, that the alteration was made without the consent,
direction, or authority of the surety, but it was not alleged that
it was done
without his knowledge, or by whom it was
done.
Referring to those omissions in the plea, the court say, that in
view of those circumstances, it was not an unreasonable inference,
that if the plea had disclosed by whom the alteration was made, it
would have appeared that it did not affect the validity of the
instrument. Much stress also was laid upon the fact, that there was
nothing upon the face of the instrument indicating that it had been
altered, or casting a suspicion upon its validity, and the court
held, that the burden of proving when and by whom the alteration
was made under the state of facts alleged in the plea, was properly
cast upon the defendants. But the court admitted that a party
claiming under an instrument, which appears on its face to have
been altered, was bound to explain the alteration, and show that it
had not been improperly made. Reference was also made by the court,
at the same time, to
Page 69 U. S. 232
two decided cases as asserting that doctrine, and it is clear
that both the cases cited [
Footnote
4] fully sustain the position.
General rule is that where any suspicion is raised as to the
genuineness of an altered instrument, whether it be apparent upon
inspection, or is made so by extraneous evidence, the party
producing the instrument and claiming under it, is bound to remove
the suspicion by accounting for the alteration. [
Footnote 5] Exceptions to the rule
undoubtedly arise, as where the alteration is properly noted in the
attestation clause, or where the alteration is against the interest
of the party deriving title under the instrument; but the case
under consideration obviously falls under the general rule.
[
Footnote 6] Every material
alteration of a written instrument, according to the old decisions,
whether made by a party or by a stranger, was fatal to its validity
if made after execution, and while the instrument was in the
possession and under the control of the party seeking to enforce
it, and without the privity of the party to be affected by the
alteration. [
Footnote 7]
Grounds of the doctrine, as explained in the early cases and by
text writers, were twofold. First. That of public policy, which
dictates that no man should be permitted to take the chance of
committing a fraud without running any risk of losing by the event
in case of detection. Secondly. To insure the identity of the
instrument and prevent the substitution of another without the
privity of the party concerned. [
Footnote 8] Courts of justice have not always adhered to
that rule, but the decisions of recent date in the parent country,
show that her courts have returned to the old rule in all its
vigor. [
Footnote 9] Judge
Story, in
United States v. Spalding, [
Footnote 10] condemned so much of the rule
Page 69 U. S. 233
as holds that a material alteration of a deed by a stranger,
without the privity of the obligor or obligee, avoids the deed, and
the weight of authority in this country is decidedly the other way.
He objected to the rule as repugnant to common sense and justice,
because it inflicted on an innocent party all the losses occasioned
by mistake or accident, or by the wrongful acts of third persons.
[
Footnote 11]
IV. Present case, however, does not depend upon that rule; nor,
indeed, is it necessary to express any opinion as to what is the
true rule upon the subject, except to say that where the alteration
is apparent on the face of the instrument, the party offering it in
evidence and claiming under it is bound to show that the alteration
was made under such circumstances that it does not affect his right
to recover. [
Footnote
12]
Defense in this case, as exhibited in the prayer for
instruction, was based not only upon the ground that there was a
material alteration in the bond, but also upon the ground that the
defendant was a surety, and, consequently, both considerations must
be kept in view at the same time. True inquiry, therefore, is, what
is the rule to be applied in a case where it appears that the
contract of a surety has been altered without his knowledge or
consent, and where it appears that the effect of the alteration is
to augment his liability? Mr. Burge says, that an alteration in the
obligation or contract, in respect to which a person becomes
surety, extinguishes the obligation, and discharges the surety,
unless he has become, by a subsequent stipulation, a surety for, or
has consented to the contract as altered. [
Footnote 13] Same author says, if there be any
variation in the contract made without the consent of the surety,
and which is, in effect, a substitution of a new agreement,
although the original agreement
Page 69 U. S. 234
may, notwithstanding such variation, be substantially performed,
the surety is discharged. [
Footnote 14]
Authorities are not necessary to show that the alteration, in
this case, was a material one, as it obviously increased the
liability of the defendant; and in case of the default of the
principal and payment by the defendant, diminished his means of
protection by the way of contribution, and the rule is universal
that the alteration of an instrument in a material point by the
party claiming under it, as by inserting or striking out names
without the authority or consent of the other parties concerned,
renders the instrument void, unless subsequently approved or
ratified. [
Footnote 15]
Responsibility of a surety rests upon the validity and terms of
his contract, but when it is changed without his knowledge or
authority, it becomes a new contract, and is invalid, because it is
deficient in the essential element of consent. Where, after the
execution of a bond by the principal and the surety, conditioned
for the performance by the former of his duty as collector in
certain townships, the name of another township was added with the
consent of the principal, but without that of the surety, this
Court held, in
Miller v. Stewart, [
Footnote 16] that the latter was discharged from
all obligation, because the duties imposed by the instrument in its
altered state were not those for the performance of which he had
made himself responsible, and that the defect could not be cured by
declaring on the condition as it originally stood. Opinion of the
court was given in that case by Judge Story and his remarks upon
the subject are decisive of the question under consideration.
Indeed, nothing can be clearer, both upon principle and authority,
than the doctrine that the liability of a surety is not to be
extended by implication beyond the terms of his contract. To the
extent, and in the manner, and under the circumstances pointed out
in his obligation, he is bound, and no farther. He has
Page 69 U. S. 235
a right to stand upon the very terms of his contract, and if he
does not assent to any variation of it, and a variation is made, it
is fatal.
When the contract of a guarantor or surety is duly ascertained
and understood by a fair and liberal construction of the
instrument, the principle, says Chancellor Kent is well settled,
that the case must be brought strictly within the guaranty, and the
liability of the surety cannot be extended by implication.
[
Footnote 17] Liability of a
surety, say the court, in
McClusky v. Cromwell, [
Footnote 18] is always
strictissimi juris, and cannot be extended by
construction; and this Court, in the case of
Leggett v.
Humphrey, [
Footnote 19]
adopted the same rule, and explicitly decided that a surety can
never be bound beyond the scope of his engagement. [
Footnote 20]
Argument is unnecessary to show that a variation of the contract
was made in this case, because it is admitted, and it is equally
certain, that the person whose name was erased is fully discharged,
and, consequently, that the plaintiffs cannot declare upon the
original obligation as it stood before the alteration was made.
Neither a court of law or equity, said this Court, in
McMicken
v. Webb, [
Footnote 21]
will lend its aid to affect sureties beyond the plain and necessary
import of their undertaking, nor add a new term or condition to
what they have stipulated. Sureties must be permitted to remain in
precisely the situation they have placed themselves; and it is no
justification or excuse with another for attempting to change their
situation to allege or show that they would be benefited by such
change. Such, say the court, in that case, is the doctrine in
England, in this Court, and in the state courts, and the
authorities cited fully justify the remark. Whenever the contract
is varied, whether by giving time to the principal or by an
alteration of the contract, it presents
Page 69 U. S. 236
a new cause of action, to which the surety has never given his
assent, and with which, therefore, he has nothing to do. [
Footnote 22]
Evidence shows that the alteration was made without the
knowledge of the defendant, and there is neither fact nor
circumstance in the case from which to infer any subsequent assent.
Undoubtedly, he knew when he signed the bond that the law required
that it should be approved by the district judge; but his knowledge
of the law in that behalf furnishes no ground of inference that he
authorized the alteration, or that he consented to be bound in any
other manner, or to any greater extent, or under any other
circumstances than what was expressed in the instrument. Supreme
Court of Massachusetts held, in the case of the
Agawam Bank v.
Sears, [
Footnote 23]
that a surety did not authorize the principal to make a material
alteration in the note, by permitting him to take it to the bank
for discount, and that such an unauthorized alteration discharged
the surety; and where two sureties signed a probate bond, subject
to the approval of the judge of probate, and it was subsequently
altered by the judge of probate by increasing the penal sum, with
the consent of the principal, but without the knowledge of the
sureties, and was then signed by two additional sureties, who did
not know of the alteration, and then was approved by the judge of
probate, the same court held that the bond, though binding on the
principal, was void as to all the sureties.
See also Howe v.
Peabody, 2 Gray 556;
Burchfield v. Moore, 25 English
Law & Equity 123. Analogous as those cases are, however, they
are not as directly in point as that of
Martin v. Thomas,
[
Footnote 24] which is the
latest decision upon the subject pronounced by this Court. Suit in
the court below, in that case, was against the sureties in a
replevin bond. Statement of the case shows that the bond was given
by the defendant in replevin with sureties, to obtain the return of
the property which was the subject of the replevin suit. Defendant
subsequently erased his name from the bond with the consent of the
marshal, but without the knowledge or
Page 69 U. S. 237
consent of the sureties; and this Court held, that the bond was
thereby rendered invalid against the sureties. Principle of these
decisions is that the alteration varies the terms of the
obligation, and that the contract thereby ceases to be the contract
for the due performance of which the party became surety, and
wherever that appears to be the fact, and the surety is without
fault, he is discharged.
Correct rule, we think, is stated by Lord Brougham in
Bonar
v. Macdonald, [
Footnote
25] and which is substantially the same as that adopted by Mr.
Burge in his treatise on surety. Substance of the rule is that any
variation in the agreement to which the surety has subscribed,
which is made without the surety's knowledge or consent, and which
may prejudice him, or which may amount to a substitution of a new
agreement for the one he subscribed, will discharge the surety,
upon the principle of the maxim
non haec in foedera veni.
Intentional error cannot be imputed to the district judge, but the
undisputed facts show that the erasure was made after the defendant
signed the instrument, and before its approval, and without the
knowledge or consent of the defendant.
For these reasons, we are of the opinion that the first prayer
for instruction, presented by the defendant, should have been
given.
Judgment of the circuit court therefore is reversed and the
cause remanded with direction to issue a new venire.
[
Footnote 1]
Act of 24th of September, 1789; 1 Stat. at Large 87.
[
Footnote 2]
1 Stat. at Large 87.
[
Footnote 3]
42 U. S. 1 How.
112.
[
Footnote 4]
Henman v. Dickinson, 5 Bingham 183; Taylor v. Mosely, 6
Carrington & Payne 273.
[
Footnote 5]
1 Greenleaf on Evidence 564.
[
Footnote 6]
Knight v. Clements, 8 Adolphus & Ellis' 215;
Newcomb v. Presbrey, 8 Metcalf 406.
[
Footnote 7]
Pigot's Case, 11 Coke 27;
Master v. Miller, 4
Term 330.
[
Footnote 8]
2 Taylor on Evidence § 1618.
[
Footnote 9]
Davidson v. Cooper, 11 Meeson & Welsby 778;
Same v. Same, 13
id. 343; 2 Taylor on Evidence §
1624.
[
Footnote 10]
2 Mason 482.
[
Footnote 11]
2 Parsons on Bills 574; 1 Greenleaf on Evidence (10th ed) § 567,
p. 749.
[
Footnote 12]
Parsons on Bills 577; Greenleaf on Evidence (10th ed) § 564;
Knight v. Clements, 8 Adolphus & Ellis 215;
Clifford v. Parker, 2 Manning & Granger 909;
Wilde
v. Armsby, 6 Cushing 314.
[
Footnote 13]
Burge on Suretyship, p. 214.
[
Footnote 14]
Evans v. Whyte, 5 Bingham 485;
Archer v. Hale,
4
id. 464;
Eyre v. Bartrop, 3 Maddock 221;
Bonser v. Cox, 6 Beavan 110;
Archer v. Hudson, 7
id. 551.
[
Footnote 15]
Boston v. Benson, 12 Cushing 61.
[
Footnote 16]
22 U. S. 9
Wheat. 702.
[
Footnote 17]
3 Commentaries (10th ed) 183;
Birkhead v. Brown, 5 Hill
635.
[
Footnote 18]
1 Kernan 598.
[
Footnote 19]
62 U. S. 21 How.
76.
[
Footnote 20]
United States v.
Boyd, 15 Pet. 208;
Kellog v. Stockton, 29
Pa.St. 460.
[
Footnote 21]
47 U. S. 6 How.
296.
[
Footnote 22]
Gass v. Stinson, 3 Story 452.
[
Footnote 23]
4 Gray 95.
[
Footnote 24]
65 U. S. 24 How.
315.
[
Footnote 25]
1 English Law & Equity 1.