Winham v. Crutcher ( 1882 )

Eeeeman, J.,

delivered the opinion of the court.

The real contest now before us is between complainant Winham and respondent Murray. The case is this: One Shankland had become the first accommodation endorser for Lucas, on notes given to Mr*. Crutcher. Murray was the second endorser. Mrs. 'Crutcher brought suit in February, 1868, before a justice of the peace for Davidson county on this debt, •and had judgment against Shankland and Murray. ■Shankland prayed an appeal for himself and Murray, and signed his own name and the name of Murray to •the appeal bond. He then requested Winham to go security on the bond for the appeal. Winham does -not appear to have known that Shankland had signed Murray’s name to the bond, and it does appear that he in good faith went on the bond believing he was the surety of both Shankland and Murray. The judgment of the justice was affirmed on trial before a jury, December, 1868, in the circuit court, and judgment rendered against Shankland and Murray, and against Winham, as their surety on the appeal bond. It turns out that Murray did. not authorize the appeal ■to be taken in his name, nor Shankland to sign his ■name to the appeal bond. If this was all the case, there .would be an end of it, as Murray would clearly, mot be liable, whenever he interposed the plea of non ■est jaetum to the bond, or might be relieved in equity from such liability by injunction against its enforcement.

But in addition to the above, it appears that a few days after the appeal was taken, Winham told him he -had gone his surety on the bond for appeal. Murray, at this, said to him he had not authorized the appeal nor signing of his name. Murray then went to the .justice, who told him the papers had been sent to the circuit court. He then went to the clerk, as he says, to have his name taken off the bond, but on the clerk giving him the opinion that no judgment could be rendered against him, if he did not sign the bond or authorize it, he quietly let the matter stand, taking no action whatever to dismiss the appeal or have himself released from the bond. Thereupon a judgment was rendered against him, Shankland, and Winham as surety for appeal. Winham has paid the balance of the judgment, and seeks to hold Murray responsible over to him for his reimbursement as his surety. There are some other facts bearing on this question, which will be noticed as we proceed.

The case of Coles v. Anderson, 8 Hum., 491, is cited as authority for the non-liability of Murray in this case. That case was unquestionably correctly decided. Coles had not appealed as in- this case, but an appeal’ without his knowledge or consent.^ But in that, case,. Coles, who had not appealed, promptly disaffirmed the act of the parties appealing for him, and at once took .effective measures, by filing his bill to enjoin the plaintiff from making the money out of his property, as. soon as he had knowledge of the facts, which was when an execution was levied on his property.

In this case, the party had knowledge of what had been done in a few days after it was done, and while disclaiming . the authority of the parties, in words, to act for him, yet took no steps whatever to effectuate that disclaimer. On the contrary, he by his conduct acquiesced in what had been done, and permitted the judgment to be rendered against himself, and also his surety on the appeal bond Winham, and Winham has. been compelled to pay the same. He not only remained silent np to this point, but submitted to the judgment for about seven years, before making any effort whatever to contest bis liability, and now makes this contest with only the surety "Winham, who has paid the debt. In addition, when an execution issued on the judgment, and the officer called on him with the execution, he not only did not then disaffirm his liability, and took no steps to have the judgment set aside or his non-liability declared; but, on the contrary, distinctly recognized his liability in the precise order in which he understood himself liable by his undertaking as second endorser, and went with the officer to Shankland, the first endorser’s, house, and there pointed out property to be levied on in his exoneration, and urges this as an additional defense in this case. It is true the officer permitted Shankland to put him off, by an agreement, the terms of which we do not see, but this does not change .the result of the conduct ot Murray, nor modify its meaning. It meant a recognized secondary liability under that judgment, and that his property Avas liable to the execution, after Shankland’s, of it meant nothing.

The fact is, Shankland was then, and for several years after the appeal and bond, perfectly good, and the only inference to be fairly drawn from the conduct of Murray is, that in view of this fact, after he knew all about the appeal, he concluded to acquiesce in what had been done, and take the benefit of the delay thereby accruing to him. After seven or eight years have been suffered to pass, and Shankland becomes insolvent, he has changed his mind, and for the first time raises this contest, to avoid his liability to "Win-ham. It is clearly an after-thought, born -of the new conditions that have arisen since the original transaction.

It is assumed, that the signing of the bond by Shankland was absolutely void — a nullity — and ' therefore-there could grow out of this act no liability whatever. This is popular language, and is frequently loosely used in our opinions, where in connection with the-facts, it sufficiently expresses the idea intended to fas' conveyed. In fact such an act, done by a party purporting to act for another, is only voidable on presentation of the facts, and by the judgment of a court,, when the facts are put in issue, by the proper pleadings as between the party whose name is thus signed and an obligee to whom a liability has been prima, facie created. To have avoided a judgment in the-circuit court, Murray had a remedy easy and simple,, that is, he could at once dismiss his appeal. This it was his duty to have done at once. Instead of that he has permitted the appeal to continue, a judgment to be rendered against himself, as well as. his surety "Winham, and when W"inham has been made to pay, he then interposes the plea of non est factum, to prevent reimbursement of the surety. Winham could not have dismissed this appeal. If he had attempted to be released of his liability on the bond, Murray could have ratified the act of Shankland in signing his name, and prevented Winham’s release — even if he had found any means by which to raise the question, by interposing the facts. We cannot see how in fact he could. Rave done so, as .he had no right to avoid the liability of Murray on the bond, while Murray himself' acquiesced in it. To get the benefit of the plea of non est factum on the part of Murray was perhaps beyond his power. Murray having failed to take such action as he might, or in fact any action whatever, to avoid his liability on the bond — a judgment having been rendered against him in the circuit court, which stands in full force so far as he is concerned, he is-now estopped after his long acquiescence, as against a surety, equally innocent with himself, from disclaiming his liability on the bond.

That this is a case where Murray might ratify the act of Shankland, is beyond question. It is a contract made in his name by another purporting to act for him — one not forbidden by law or public policy to be-made.

The only question is, has he done it? It is well-settled, that where a party, with full knowledge of all the facts creating the liability, acquiesces in what has been done, he thereby ratifies what is done, and silence in such a case, after a reasonable time, will amount to a ratification: Fort v. Coker, 11 Heis., 589.

The acts of a party conclude him, especially where others are concerned, notwithstanding he may make declarations to the effect that he did not so intend: 7 Baxt., 260. The acts of a party assuming to act for another may be presumed to have been ratified by the principal, when the acts and conduct of the latter are inconsistent with any other supposition — as where he waives and holds the fruits of the agent’s acts, and in many other cases: Wait’s Act. & Def., vol. 1, 264, and authorities cited. Murray in this case got the benefit of the delay of the appeal ' with a full knowledge it had been taken, and all the facts and circumstances attending it.

Under all these principles, we think Murray has ratified the act of signing his name — and by his acquiescence, has involved Winham in a judgment in the circuit court, which, having paid, he is entitled to hold him as surety bound to reimburse him.

For these reasons, the decree below must be reversed, and a decree for Winham, for balance due on the judgment paid by him. Costs to be paid by Murray.