Romer v. Conter

Dickinson, J.

The cause of action set forth in the complaint is in brief as follows:

In June, 1889, the plaintiff contracted with the owners of certain lands to erect a block of buildings- thereon, obligating himself by a bond with sureties for the use of all persons who might furnish materials or labor for the construction, with the condition that their claims should be paid. The defendants Ferodowdll & Sickel were subcontractors under the plaintiff, and they obligated themselves to him by bond, with the appellant, Conter, as their surety, as is alleged, conditioned that they should pay for all labor and material contributed in the performance of their subcontract. Certain persons supplied material to Ferodowill & Sickel, the subcontractors, for which the latter did not pay. Such material men then sued this plaintiff and Ms sureties on their bond, and recovered judgments, which the plaintiff paid. Thereupon he instituted this action on the bond executed to Mm by the subcontractors, to recover the amounts of the judgments so recovered against and paid by Mm. A verdict was rendered for the plaintiff, a new trial refused, and the defendant Conter has appealed. He denies that he executed the bond.

1. The complaint show’s upon its face a right of recovery. If the plaintiff has any means of reimbursement, or has been reimbursed or paid for what he has been compelled to pay on account of the subcontractors, that "would have properly been matter of defense, in so far as it may have constituted a defense. The plaintiff was not required to plead the nonexistence of any such facts.

2. The bond bearing an official certificate of acknowledgment of the execution of it by the obligors named in it, and whose names appeared to have been subscribed thereto, the instrument was receivable in evidence without other proof of its execution. 1878 G. S. cb. 73, §§ 67-96. Section 89 of the same chapter does not qualify the effect or force of an official acknowledgment under the statutes above cited as prima- facie proof of the execution of instruments authorized to be acknowledged. Even though the execution is denied under oath, the certificate of acknowledgment is prima facie evidence of the execution.

3. The ruling of the court allowing the plaintiff to present evidence of the execution of the bond by Conter after the latter had introduced his evidence in support of his denial of the execution was a matter witMn the discretion of the court.

4. The court instructed the jury that the burden of proof rested upon the plaintiff, in the first instance, to establish the fact that the bond was executed by Conter; and that he (plaintiff) had introduced the bond itself bearing the certificate of acknowledgment, and then added: “This circumstance, under the law of this state upon that subject, entitled the bond to be introduced and received in evidence, and shifted the burden of proof onto the defendant Conter to show that he did not execute the bond.” Exception was taken to that pant of the charge which we have recited. The point is now argued as though the court had instructed the jury that, the bond having been presented bearing a certificate of acknowledgment, the general burden of proof, upon the issue as to its execution, rested upon the defendant. But that was not the language or effect of the instruction. The more apparent meaning was that the certificate of acknowledgment constituted prima facie proof of the execution, so that it then devolved upon the defendant to show that he did not execute it. This was strictly true. If the defendant had offered no evidence upon the point, the plaintiff’s prima facie case would have become conclusive.

As to the assigned error in respect to the receiving of Exhibits 14 and 17 in evidence, the appellant declines in his brief to do more than to reiterate his assignment of error. . We therefore decline to consider it. If there was anything in the point it deserved some consideration at the hands of the appellant.

Order affirmed.

Vanderburgh, J., absent, took no part»

(Opinion published 54 N. W. Rep. 1053.)