CARNEGIE, PHIPPS & CO., Limited, v. HULBERT et al., 70 F. 209

CALDWELL, Circuit Judge, after stating the facts as above, delivered the opinion of the court. The contention of the defendants in error is that the bond is void because it was not executed to the county as the obligee, and for a penalty, and with conditions, and was never delivered and approved, and that the sureties thereon were ineligible to become such.

The plaintiffs in error maintain (1) that the bond is a good statutory bond, and (2) that, if this is not so, it is a good common-law bond, and (3) that, if it is neither a good statutory nor common-law bond, the facts found by flu» jury estop the defendants from contesting their liability thereon to the plaintiffs in error. It is provided by

section 327 of McClain's Code of Iowa that: “Tlie surety in every bond provided for by this Code must be a resident of ibis state and worth double the sum to be secured beyond the amount of his debts, and have property liable to execution in this state equal to the sum to be secured. Where there are two or more sureties in the same bond, they must, in the aggregate, have the qualification prescribed in this section.” It is objected that the sureties, not being residents of Iowa., did not possess the qualifications required by this section, and that the bond, as to them, is void for that reason.

The statute under which the bond was given is silent as to the qualification of the sureties, the only requirement being that they shall be “approved.” It will bo observed that the

section of the Code quoted only applies to “every bond provided for by this Code,” and the bond in suit was not provided for by Unit Code, but by

an act of the legislature passed long subsequent to the adoption of the Code. The act was not even an amendment of the Code, but new and independent legislation. Moreover, if the Code requirement as to the .qualification of sureties applied, the sureties would not bo heard to say that they did not possess the statutory qualifications. Wright v. Schmidt, 47 Iowa, 233: Tessier v. Crowley, 17 Neb. 208, 22 N. W. 122; Jack v. People, 19 Ill. 57. It is very earnestly contended by the counsel for the defendants in error that the bond is void because it was not executed to the county as obligee, and contains no penalty.

The act recognizes two distinct classes of claimants to be affected by the giving of bonds: First, those who have filed their claims before the bond is given. This class is embraced by the first clause of the section. And, second, those who are then, or may thereafter become, entitled to file claims, but who are prevented from so doing by the filing of a bond. This class is covered by the second clause of the section.

As to the first class of creditors, the act requires the bond to be executed to such corporation “for the benefit of such claimants in sufficient penalty ⅞ •» ⅞ conditioned for the payment of any sum which may be found due such claimant”; and as to the second class of creditors the provision is that the “contractor may prevent the filing of such claims by filing in like manner a bond conditioned for the payment of persons who may he entitled to file such claims.” Under the act, as many bonds may be executed as tbe necessity of the case may require.

One bond may be executed to release the lien of claims already filed, and another to prevent the filing of such claims in the future, or both classes of claims may be included in one bond, as was done in the bond in suit. The claim of the Northwestern Terra Cotta Company falls under the first clause of the section. This claim had already been filed, and the public records of the county disclosed its amount.

Concerning this claim the bond recites that it is given by the defendants “as sureties, for the purpose of releasing the claim now on file with the auditor of Montgomery county, Iowa, in favor of the Northwestern Terra Cotta Company, which claim is a mechanic’s lien against a public corporation, to wit, Montgomery county, Iowa, * ⅞ * and for the use and benefit of said Northwestern Terra Cotta Company, * * * and for the purpose of paying any and all sum or sums found to be due to said Northwestern Terra Cotta Company from Richards & Company, aforesaid. ⅞ ⅞ * This obligation is executed and we bind ourselves and assigns to pay any such sum or sums so found to be due said Northwestern Terra Cotta Company.” As to this claim the obligee is named, the promise to pay is absolute, and the amount to be paid certain, or, what is equivalent thereto, capable of being rendered certain by reference to a public record of the county.

The obligation assumed by the defendants to prevent the filing of claims is no less explicit.

The bond recites that it is given by the defendants “as sureties, s * for the purpose of preventing the filing of any mechanics’ liens for materials furnished or work and labor performed in the building and erection of said courthouse, for which the persons furnishing said materials and performing said labor would, under the laws of the state of Iowa, be entitled to file a mechanic’s lien against said public corporation, to • wit, Montgomery county, Iowa, * * ⅞ and for the purpose of paying any and all sums due from said Richards & Co. to any and all persons for materials furnished or to be furnished, or for work or labor done or to be' done, for which any of said persons have now or may hereafter have a right to file a mechanic’s lien against said public corporation, Montgomery county, Iowa. * * *” The bond is prolix arid informal, but- the obligations assumed by the defendants are distinctly stated, and several times repeated.

The fact that the county was not named as the obligee in the bond, as required by the act, does not affect its validity. By the terms of the act the bond is to be executed “to such corporation, for the benefit of such claimants.” It is the claimants, and not the county, who are to be secured by the bond. They are made the sole beneficiaries, and by the terms of the act “suit may be brought on said bond by any claimant.” Independently of this latter provision, the claimants could have maintained the suit on the bond as the real parties in interest.

Moreover, the Code of Iowa provides that a mistake in the name of an obligee in a bond shall not vitiate the security. We quote the sections which show this: “Sec. ¡324. Whenever security is required to be given by law, or by order on judgment of a court, and no particular mode is prescribed, it shall be by bond. ‘‘See. 32o. Such security, when not otherwise directed, may, if for the benefit of individuals, be given to the party intended to be thereby secured.

If in relation to the public ma tters concerning the inhabitants of one county or part of a county, it may he made payable to the county; if concerning the inhabitants of more than one county, it may be made payable to the state. But a mere mistake in these respects will not vitiate the security.” The statute of Iowa required sheriffs bonds to be given to' the county.

A sheriff's bond was given to the “people of Woodbury county,” and in answer to the contention that this rendered the bond void the supreme court of Iowa said; “It is further submitted that the bond, being given to the ‘people of Wood-bury county,’ is not such a bond as would make the defendants liable, there being no obligee of the contract, no such person or corporation known to the law. A mistake of this character will not vitiate the security. See

section 2506 of the Code.” Charles v. Kaskins, 11 Iowa, 329. The

section cited by the court as 2506 is now

section 325 of McClain’s Annotated Code of Iowa, which we have quoted above. This opinion of the supreme court of Iowa, construing and applying a statute of'that state, is binding on this court, and is conclusive on this question. We may add, however, that, independently of the statute and decision referred to, we should have no difficulty in holding that, the omission to name the county as obligee in the bond in suit in no. manner affected its validity. In State v. Wood, 51 Ark. 205, 10 S.

W. 624, the suit was on the bond of a county treasurer, which named no obligee, and it was contended that the bond was void for that reason. Answering this contention, the court, speaking by Chief Justice Cockrill, said: “It is argued with great earnestness that the treasurer’s bond which is the foundation of the suit is void, upon tiie ground that it names no obligee. The fallacy lies in the assumption that the obligation has not been assumed to any one.

A bond is construed like any other contract or instrument of writing. — it is enough that the intent plainly appears, though it be not fully raid particularly expressed. Partridge v.

Jones, 38 Ohio St. 375. ‘If Hiere ever was a time,’ says the court in the case cited, quoting from another case, ‘when the court listened to trivial verbal inaccuracies in contracts when the real meaning and intention of the parties was plain, that time has gone by. and the only object of the courts is that, when the meaning and intention of the parties are perfectly plain, no grammatical inaccuracy or want of the most appropriate words shall render the instrument unavailing.’ It was never regarded as necessary that the obligee in a bond should he specified eo nomine.

It was enough if he was so designated that he might be cel-ta inly ascertained. Preston v. Hull, 12 Am. Law Reg. (N. S.) 699, and note; Fellows v. Gilman, 4 Wend. 419. * * * The condition which shows the design of the bond is the important requirement in such an undertaking, and when that is properly framed, as it is conceded it was in this instance, ‘the naming of an obligee is,’ as Judge Cooley expressed it in delivering the judgment for the supreme court of Michigan, ‘the merest formality possible, so that, if the instrument omitted to name one, * * the substance of the undertaking would remain.’ Bay Co. v.

Brock, 44 Mich. 45, 6 N. W. 101. The substance remaining, how can the bond be void for informality?” The doctrine of this case has our approval, and is supported by the best-considered modern cases. Bank v. Smith, 5 Allen, 415; Preston v. Hull, 23 Grat. 600; Bay Co. v. Brock, 44 Mich. 45, 6 N. W. 101. The condition of the bond in suit is that required by the act. It is true, no penalty is named as such, but the condition of the bond supersedes the necessity of naming a lump sum as a penalty.

If a penalty was named, it would, in order to meet with the requirements of the act, have to be in a sum equal to the sum of all the claims that had. accrued or might thereafter accrue. The presumption of law is, therefore, that if any specified sum had been named in the bond as a penalty, it would have been a sum equal in amount to all the claims. A bond which named a less sum would not have been a compliance with the act. The difficulty in fixing a penalty as to claims which have not accrued or have not been filed is apparent. iTo one can know with any degree of certainty what they will amount to.

The bond was, therefore, with the assent of the defendants, conditioned for the payment of all claims which had been or which might thereafter be filed. The extent of the obligation of the defendants on this bond is precisely what it would have been had it named the penalty required by the act. The penalty must have equaled the amount of all the claims. The bond is the exact legal equivalent of this. By it the defendants agree to pay the amount of all tbe claims. jSTo claim is included which would not have been included in the penalty of the bond' had it complied technically with the requirement of the act.

Instead of naming a sum as the penalty, the only effect of which would have been to limit the liability of the defendants to the sum named, the parties chose to fix the limit of their liability by specifying the claims they obligated themselves to pay, and this is the penalty of the bond, and a sufficient compliance with the act in that regard. Other technical objections to the bond as a statutory bond need not be considered. Assuming, but not deciding, that they are well founded, the bond is unquestionably a good common-law bond.

It is well settled that a bond given in pursuance of some requirement of law may be valid and binding on the parties, although not made with the formalities or executed in the mode provided by the statute under which it purports to have been given.

This rule rests on the principle that, although the instrument may not conform to the special provision of the statute or regulations with which the parties executed it, nevertheless it is a contract voluntarily entered into upon a sufficient consideration, for a purpose not contrary to law, and therefore it is obligatory upon the parties to it in like manner as any other contract or agreement is held valid at common law. Bank v. Smith, 5 Allen, 415; U. S. v. Bradley, 10 Pet. 357; U. S. v. Linn, 15 Pet. 311; U. S. v. Hodson, 10 Wall. 395; Shepard v. Collins, 12 Iowa, 570.

The bond in suit possesses all the requisites of a good common-law bond. It was voluntarily given upon a sufficient consideration, for a lawful purpose, and is as obligatory on the makers as if it had conformed technically with the requirements of the act. There is another view of the case equally conclusive against the' contention of the defendants in error. Among the special findings of the jury are the following: “

(10) We find that about the 2d day of February, 1891, while the said plaintiffs were engaged in performing the said contracts and furnishing said material and labor, and before the same had been completely furnished and performed, and for the purpose of preventing the plaintiffs from filing a claim against Hie county of Montgomery for the value of their material and lahor, the defendants herein executed and delivered and tiled with the county treasurer of Montgomery county their borní, a true copy of which is attached to the amended petition of plaintiffs herein, and marked ‘KxUibit 0.’ ” “(1:5) Yvre iind that the plaintiffs relied upon said head, and assented to the same as valid under the laws of Iowa, and were thereby induced to abstain from filing' a claim against the county of Montgomery for the value of material and labor furnished by them, and continued io perform their said contraéis in reliance tInn-eon, and continued to rely thereon until after the commencement of this suit, and uniil after the said Richards & Co. had become insolvent.” The jury have found that ilie bond was executed and delivered by the defendants “for rite purpose oí preventing' Hie plaintiffs from filing a claim against ihe county of Montgomery for Hie value of their material and labor,” and that the bond accomplished its purpose; that the plaintiffs accepted and acted upon it as a compliance with the statute, and have always so treated it; and that, by reason of their reliance upon it, they have lost their right to a mechanic’s lien on ihe building1.

The defendants, therefore, have received the consideration for which they gave ihe bond, and (lie plaintiffs, by accepting and acting upon it, and treating it as valid, have lost the undoubted right they had to make their debt by establishing a mechanics lien on the courthouse, and (hey have also lost their oppor-tunify to make their debt out of the contractors by reason of their having become insolvent. We have here all the essential principles to work an estoppel.

The defendants made the bond for the purpose of depriving the plaintiffs of a valuable right, and witii the intention that Hie plaintiffs should accept and act upon it in the manner they did, and in a. manner that will result in a total loss of their claim if the defendants are not required to perform rlie obligation of their contract. We do not understand that (he learned counsel for tire defendants in error dispute Hie law of estoppel as we have stated i(, but their contení ion is that the facts of this case do not bring it within the rule.

They say: “If an instrument has boon executed and delivered, received, accepted, and acted on as a compliance with the statute, and the consideration wholly received by the principal, then we concede that the sureties ought not as a nialier of light, and cannot as a matter of law, escape liability on account of legal defects in the form of the instrument by which they are bound.

But upon the record made in (his case we deny the claim that by reason of the execution of this instrument and its signature by the sureties for whom we appear, Carnegie, I’liipps & Company have lost any right, any privilege, or any money, and certainly deny that by reason of the execution and delivery of this instrument Richards & Company, the principals named therein, have received any consideration of any nature or kind whatsoever.” The question whether the plaintiffs in error “lost any right, any privilege, or any money” by reason of their reliance upon the bond is conclusively settled by the special verdict of the jury, which shows they lost their whole debt, except as it may be secured by the bond in suit.

And the question whether (he defendants “have received any consideration of any nature or kind whatsoever” is also settled by the special verdict of the jury, which shows that the defendants executed the bond for ihe “purpose of preventing the plaintiffs from filing a claim against the county of Montgomery county for the value of their material and labor,” and that the bond accomplished its purpose, and prevented the plaintiffs from filing their claim.

Upon these facts, which are established by the findings of the jury, the defendants are clearly estopped from availing themselves of the defense that the bond does not conform to the requirements of the statute. U. S. v. Hodson, supra; Storm v. U. S., 94 U. S. 76; Ferguson v. Landrum, 5 Bush, 230; Hall v. Wadsworth, 35 W. Va. 375, 14 S. E. 4. 'The statute of limitations is also interposed as a defense.

The act under which the bond was given provides that “suit may be brought on said bond by any claimant within one year after the cause of action accrues. * '* *” The cause of action accrued on the 18th of July, 1891, and suit was brought thereon on the 22d of August, 1891.

The petition did not contain the requisite averment as to the diverse citizenship of the parties essential to give the circuit court jurisdiction, and this court reversed the judgment of the circuit court for that reason, and remanded the case, with directions to that court to dismiss it unless the plaintiffs should amend their complaint to show that the circuit court had jurisdiction. Carnegie, Phipps & Co. v. Hulbert, 53 Fed. 10, 3 C. C. A. 391, 10 U. S. App. 454.

When the record was returned to that court, the plaintiffs amended their complaint by making the proper jurisdictional averment as to the citizenship of the plaintiffs. It is not claimed that the amendment to the petition introduced any new or different cause of action, but the contention of the defendants’ counsel is that, in contemplation of law, the commencement of the suit dates from the time the petition was amended so as to show the circuit court had jurisdiction. This contention is not sound, as we have heretofore held. In Bowden v. Burnham, 59 Fed. 752, 8 C. C.

A. 248, in answer to a similar contention we said: “But tlie court very properly granted, tlie plaintiffs leave to amend tlieir complaint, and it was amended. Nevertheless, tlie plaintiff in error asserts that, as- the complaint, at the time the attachment was issued, did not contain the necessary jurisdictional averment, every step taken in tlie case prior to the amendment was void, and that the amendment of the complaint could not impart vitality or validity to anything done before the amendment was made. This contention is wholly untenable.

It is every-day practice to allow amendments of the character of those made in this case, and when they are made they have relation to the date of the filing of the complaint or to the issuing of the writ or process amended. When a complaint is amended, it stands as though it originally read as amended.

The court in fact had jurisdiction of the cause from the beginning, but the complaint did not contain the necessary averment to show it; in other words, the amended complaint did not create or confer the jurisdiction; it only brought on the record a proper averment of a fact showing its existence from the commencement of the suit.” Tlie judgment of the circuit court is reversed, and tlie cause remanded, with directions to the circuit court to render judgment in favor of the plaintiffs in error and against the defendants in error for the sum found to be due the plaintiffs in error by the special verdict of the jury, namely, $17,363.60, with interest thereon from the date of the rendition of the verdict at the rate allowed on judgments by the law of Nebraska.