Southern Surety Co. v. Tessum , 178 Minn. 495 ( 1929 )

6. Plaintiff's petition for a rehearing suggests that appellants Dahlen, Prichard and Loken may be cosureties with it because of the sale bond which they executed as sureties with Oluf Tessum as principal. Each guardian filed a sale bond. That of Miller Tessum (exhibit B) recites that "we Miller Tessum as principal, and B. H. Cummings and James O'Hara as sureties, are held and firmly bound," etc. The bond of Oluf Tessum (exhibit G) provides that "we, O. Tessum as principal, and Henry S. Dahlen, W. W. Prichard, Sr., and Halvor Loken as sureties, are held and firmly bound," etc. Each bond is conditioned as follows:

"Now, Therefore, if the said O. Tessum and Miller Tessum shall justly and faithfully discharge their duties under said order of license, and shall justly and truly account for and pay over according to law and according to said stipulation [referred to in the former opinion at p. 497] all moneys received on account thereof, then this obligation shall be void, otherwise it shall remain in full force and virtue."

Notwithstanding this statement, the conclusion is inescapable that each bond is the separate obligation of the principal who signed it, together with his sureties, and that neither is the joint bond of the two principals.

It is all a matter of intention. If sureties see fit to bind themselves without the signature of their principal they may do so. Van Norman v. Barbeau, 54 Minn. 388, 55 N.W. 1112; Safranski v. St. P. M. M. Ry. Co. 72 Minn. 185, 75 N.W. 17. But here the contrary intention is very evident immediately the two bonds are applied to their subject matter and considered, as they must be, in the light of the circumstances of their execution and filing with the probate court. Both bear date of August 16, 1919. Both were approved by the probate court September 6, 1919. Each names one of the guardians as principal, thereby preventing the implication that the one not named is a principal also. The mere execution of the separate bonds, their simultaneous filing and approval, strongly reinforce the conclusion that each was intended as the separate bond of the guardian and sureties who signed with him and that neither bond (notwithstanding language therein which, standing alone, might be so considered) was intended to be the joint obligation of both guardians. It is plain that for a default chargeable solely to one guardian under his sale bond there could be no cause of action against the sureties on the other sale bond wherein the only principal was the innocent guardian. State v. Austin, 35 Minn. 51, 26 N.W. 906; Martin v. Hornsby,55 Minn. 187, 56 N.W. 751; Bjoin v. Anglim, 97 Minn. 526,107 N.W. 558; School Dist. No. 80 v. Lapping, 100 Minn. 139, 110 N.W. 849, annotated, 12 L.R.A. (N.S.) 1105. The sureties on the two bonds were not cosureties.

Plaintiff's petition for rehearing is denied.