Dolbeer v. Livingston
Before: Belcher
Synopsis
Bond—Charter Party of Steamer—Unauthorized Filling of Blanks— Ignorance of Owner—Estoppel of Surety.—A surety who signs a bond with the expectation and understanding that his principals were seeking to obtain a charter party of a steamer and expected to charter one from the managing owner thereof, who was known to all the parties as such owner, is estopped, as against such owner who receives the bond in good faith, without knowledge or reason to suspect that it was not properly executed, to deny that the bond was a valid instrument because the blanks for the names of the steamer and the managing owner were not filled up when he executed it, but were filled in by his principals without express authority.
Id. —Suffering of Innocent Persons—Maxim—Negligence. —When one of two innocent persons must suffer by the acts of a third, he by whose negligence it happened must be the sufferer.
Id.—Estoppel in Pais.—Where a person by word or conduct induces another to act on a belief in the existence of a certain state of facts, he he will be estopped as against him to allege a different state of facts.
Belcher, C. On July 3, 1890, the plaintiff entered into a written agreement with the defendants, J. B. Livingston and W. H. Clarke, under the firm name of Livingston, Clarke & Co., whereby he leased to them the steamer Farallón for a certain time, commencing [619]July 8, 1890, and upon certain terms and conditions. And, to secure performance of the terms of the agreement on their part, the said defendants delivered to the plaintiff a bond signed by themselves as principals, and by W. M. Ginty and W. H. Clarke as sureties.
The plaintiff commenced this action on the said bond, alleging that Livingston, Clarke & Co. had failed to pay the full amount of money due under the charter party for the use of the steamer, and demanding judgment against all of the defendants for the amount so due and unpaid, with interest thereon.
The defendant, Ginty, answered the complaint and denied that he, as a surety or otherwise, executed to the plaintiff, or at all, the bond sued upon.
Upon the issue thus raised the case was tried by the court, without a jury, and judgment given for the plaintiff as prayed for.
From this judgment Ginty appeals on the judgment-roll, and the only point made for a reversal is that the judgment against him is not supported or warranted by the findings.
The court found, among other things, as follows:
“ That the defendant, W. M. Ginty, signed and executed the bond set out in said complaint and marked ‘ Exhibit B/ and delivered the same to the defendant, Clarke, to be delivered as security for any charter party which he or the said Livingston, Clarke and Company might desire to make, it being then expected that the said Livingston, Clarke and Company would procure a charter party for one or two steamers, the Farallón being preferred, it being known to said parties that the plaintiff was the managing owner thereof. That at the time said bond was signed by the said Ginty, the names ‘ John Dolbeer ’ and ‘ Farallón ’ and the date, ‘July 8, 1890/ were not inserted therein, but places therefor were left in blank and the same was delivered to said Clarke with said blanks, and said blanks were filled in respectively with the names ‘ John Dolbeer/ ‘ Farallón/ and ‘ July 8, 1890/ by the said Clarke before said bond [620]
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