CITY & COUNTY OF SACRAMENTO v. DUNLAP et al., 14 Cal. 421

Field, C. J. delivered the opinion of the Court—Baldwin, J. concurring. The defendant, Dunlap, was elected Recorder of the city of Sacramento, for one year, Rom April 10th, 1857, and, by an ordinance of the city, was required, before entering upon the discharge of his official duties, to give a bond with two or more sureties for their faithful performance. The instrument upon-which this suit was brought was filed and approved as such bond. It purports to be the joint bond of Dunlap, as principal, and of Gass and Tucker, as sureties, but is only signed by the sureties.

It bears neither the signature or seal of Dunlap, and the question for determination is whether the intended principal, or the sureties, are bound by it. We are clearly of opinion that they are not. As Dunlap has never put his signature to it, the instrument is not his deed. If liable for the fees alleged to have been collected, and to belong to the plaintiffs, it must be on grounds independent of the supposed bond and as any one is liable for moneys received which are the property of others. 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. It purports on its face to be the bond of the three. Some one must have written bis 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.) In the case of Bean v. Parker et al. it was held that the sureties on a bail-bond were not liable unless the same was signed by the principal. “We think it essential to a bail-bond,” said the Supreme Court of Massachusetts, “ that the party arrested should be a principal; it is recited that he is; and the instrument is incomplete and void without his signature. The remedy of the sureties against the principal would wholly fail, or be much embarrassed, if such an instrument as this should be held binding.” In Wood v.

Washburn et al. where an administration bond was not executed by the Administratrix, it was held by the same Court, that the sureties were not liable. There is no substantial difference between the bonds in the cases cited and the bond in suit. There is no analogy between them and undertakings required of sureties, by statute, in our civil and criminal practice. In the latter case, the undertaking is an original and independent contract on the part of the sureties, to which the signature of the principal is not essential. (Curtis v.

Richards et al. 10 Cal. 38.) The instrument, in this case is, in form, a joint bond only, and not joint and several, and, in this respect, differs materially from the bonds in the cases of Parker v. Bradley et al. 2 Hill, 584; Cutter v. Whitmore, 10 Mass. 442, and The State of Ohio v. Bowman et al. 10 Ohio, 445, cited by the Respondents.

The sureties may have been willing to bind themselves jointly with Dunlap, and still unwilling to make themselves alone responsible, as upon an independent contract with the city; at any rate they only undertook to bind themselves jointly with him, and we cannot change the nature of their contract, by holding them liable, without his signature.

There are numerous authorities to the effect that the signer of a bond cannot deny its binding obligation, even where it appears upon its face to be drawn for the signature of others, and they are not annexed, unless he declared at the time that he would not be bound without such signatures were obtained. Such is the case of Cutter v. Whittemore, (10 Mass. 444.) They all, however, refer to joint and several bonds. In such instruments, each obligor is separately bound, and there is -reason in the doctrine.

If he would limit his liability, he must impose conditions upon the delivery of the instrument at the time of its execution. The doctrine can have no application to bonds which are joint only, and not several. (See, also, Fletcher v. Austin et al. 11 Vt. 449; Sharp v. United States, 4 Watts, 26.) From the views we have expressed, it follows, that the plaintiffs cannot recover upon the bond, and the judgment must in consequence be reversed. Ordered accordingly.