Comstock v. Gage

Citations

• 91 Ill. 328

Syllabus

<p>1. Delivery of bond—possession by the obligee, and acquiescence therein. The possession of a bond by the obligee is prima facie evidence of its delivery, and the acquiescence on the part of the obligors in its retention by the obligee, without taking any steps to procure its return, affords strong evidence of an unconditional delivery, or, if there was a condition to the delivery, as, that another person was to sign the bond, that it was waived, or that the condition was only for the interest of the obligee and to satisfy him, and not one which was considered as of importance to the obligors, to be performed before they were willing the bond should be delivered and have effect.</p> <p>2. Suretyship—condition that another was to sign as cosurety—of evidence in respect thereto. In a suit upon a bond executed by several, some of whom were sureties only, the latter offered to show on the trial, that, at the time they signed the bond, they did so upon the condition explained to one of the coobligors, who had the custody of the bond at the time, that it should not be delivered to the obligee until it was signed by another, but whose name did not appear upon the bond. There was no offer to show that this understanding between the defendants was made known to the obligee. The court refused to admit the evidence, and it was held there was no error in doing so.</p> <p>3. It is no defence for a surety in a bond that he signed it on condition that it should also be executed by another person as a co-surety before its delivery, and that in violation of such condition the bond was delivered to the obligee without having been executed by such other person, it not appearing that the obligee had notice of the condition.</p> <p>4. Same—-failure to communicate facts—effect upon liability of surety. In order that a failure to communicate a fact to a surety, in respect to the subject matter of the proposed contract, should have the effect of a fraud upon him, and vitiate the contract