Dair v. United States
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83 U.S. 1 (1872)
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U.S. Supreme Court
Dair v. United States, 83 U.S. 16 Wall. 1 1 (1872)
Dair v. United States
83 U.S. (16 Wall.) 1
A bond, perfect upon its face, apparently duly executed by all whose names appear thereto, purporting to be signed and delivered, and actually delivered without a stipulation, cannot be avoided by the sureties upon the ground that they signed it on a condition that it should not be delivered unless it was executed by other persons who did not execute it -- where it appears that the obligee had no notice of such condition and there was nothing to put him upon inquiry as to the manner of its execution, and that he had been induced upon the faith of such bond to act to his own prejudice.
The United States brought an action of debt on a distiller's bond, executed by Jonathan Dair and William Sauks as principals, and by James Dair and William Davison as sureties. There was no dispute as to the right to recover against the principals, but the sureties, who pleaded separately, denied their liability upon the bond, and upon the issue thus raised by them, there was the following special finding by the court:
"That the said James Dair and William Davison signed the said writing obligatory upon the day of its date, as sureties, at the instance of Jonathan Dair, one of the principals, but that it was signed by them upon the condition that said writing obligatory was not to be delivered to the plaintiff until it should be executed by one Joseph Cloud as co-surety; that the said writing obligatory, upon its signing by them upon the condition
aforesaid, was placed in the hands of the said principal, Jonathan Dair, who afterwards, without the performance of that condition and without the consent of the said James Dair and William Davison, delivered the same to the plaintiff. And that when the bond was so delivered, it was in all respects regular upon its face, and that the plaintiff had no notice of the condition."
As a conclusion of law upon these facts, judgment was rendered in favor of the United States against all the parties to the bond for the amount which it was conceded the principals owed the government. This writ of error was prosecuted by them to reverse that decision.