Opinion
Argued November 29, 1880
Decided December 21, 1880
A.R. Dyett for appellants.
Wheeler H. Peckham for respondents.
The argument of the learned counsel for the appellant was ingenious, but not sufficient to overcome the conceded facts, that upon the face of each instrument was written a declaration that "this bond shall not become obligatory until it shall have been authenticated by a certificate indorsed thereon, duly signed by the trustee aforesaid," and that those in question are not so authenticated. No argument can make the case plainer, for it cannot be denied that the Tebo and Neosho Railroad Company, when arranging the terms of a proposed contract, had an unqualified right to determine upon what condition their liability should depend, nor that a person accepting the contract with notice of that condition would be bound thereby. It is true that the bonds are apparently authenticated in the prescribed manner, but this is apparent only. The signature is a forgery. The purchaser relied upon the implied or express assurance of his vendor, that it was genuine. He took no pains to ascertain the truth of this assurance, nor was he prevented from doing so by either of the defendants. Had he asked, he would have learned the truth. From the consequence of his omission to do so, the fact that he paid value, and bought in good faith, cannot relieve him. He paid value for the bonds, but not to the defendants. He did not know or suspect that they were counterfeit, and so he bought in good faith, but nevertheless they were not genuine, and so neither the payment of value nor the innocence of his intent can help him as against the defendants. These circumstances cannot create a cause of action, when one did not in fact exist. It is claimed, however, by the learned counsel for the appellant that the negligence of the railroad company "facilitated the forgery of the certificate," and in support of that position we are referred to certain findings of the court, in substance that on or before the 8th of August, 1870, the bonds were signed by the proper officers of the railroad company, with the intent and for the purpose of being duly sealed with the seal of such company, and then transmitted to the office of the trust company to be certified; that in the early part of August they were missing, and although the defendants were informed thereof they did not notify the public they were missing, lost, or stolen, or that they had not been issued by the company. We think the trial court committed no error in refusing to find that these things constituted negligence. In what way by these acts, or this omission, was the conduct of the plaintiff influenced? It is impossible to see. It might as well be said that the organization of the company and its conduct of business in such a manner as to inspire confidence in its credit, and give its obligation value, were acts leading the plaintiff on to his injury. But none of these things are important. The plaintiff's loss is owing to his own omission of duty. The defendants had furnished an easy means by which the genuineness of the bonds could be ascertained, viz.: the existence of the certificate; and the duty of inquiry was imposed upon the purchaser. If it had been performed, the loss would not have happened. It is urged, however, by the learned counsel for the appellant that "the certificate was not essential to the validity of the bonds as obligations of the company, but solely to render them obligatory upon the trustee in the mortgage as one of the bonds secured thereby." Such a construction is opposed to the plain language of the condition, and it cannot be adopted. The declaration is that "this bond shall not become obligatory until," etc. It could, in no event, become obligatory upon any person or corporation except the one named as obligor, and who executed it. The act of the trustee, when performed, was only to authenticate, that is "to determine as real and true;" until performed the bonds rested in "supposition;" when performed its effect was to render them obligatory, and pronounce them genuine. As it has not been performed, the bonds were not complete or perfect, and have not become the contracts of the railroad company. These considerations apply also to the proposition of the learned counsel for the appellants, that the defect above indicated has been waived by the agreement of consolidation between the Tebo and Neosho Railroad Company, and the Misssouri, Kansas and Texas Railway Company, and the new mortgages issued by the latter company in furtherance of that agreement. For there is thus provided means of retiring only such bonds as had been issued by the Tebo and Neosho Railroad Company, and were then outstanding. It has no application to any bond not issued by the company, or to simulated or forged bonds, or to any bond not "obligatory" upon it. The plaintiff's bonds, therefore, are not within its terms.
The views so far expressed cover the case made by the complaint, but it is urged by the learned counsel for the appellant that they were entitled to have returned to them the Tebo and Neosho bonds, or as that was refused, to their value. It might be sufficient to say that such a claim is not within the complaint. The action is upon the contract in the agreement of consolidation above referred to, and the judgment asked is that the defendants deliver nine bonds of the Missouri, Kansas and Texas Railway Company, or the value thereof; the form of the prayer might not be material, but it is in pursuance of the complaint. A cause of action and demand for such exchange is alleged, but no demand for a return of the Tebo and Neosho bonds. To give the relief now suggested requires that the character of the action should be changed to one of tort. The plaintiff is not entitled to a return of the forged bonds. Upon their face they purport to be the obligation of the Tebo and Neosho Company, but are not. They were made to appear so by the commission of a crime. Before the alteration or forgery they were the property of the Tebo and Neosho Railroad Company, and it was intended they should come to the hands of the Union Trust Company. They are there now. The plaintiff has no title to them, for they were never issued or put in circulation by either of the defendants.
Without considering other questions in the case also urged against the plaintiff's right of recovery, we are of opinion that for the reasons above suggested the judgment of the Supreme Court was right, and should be affirmed with costs.
All concur.
Judgment affirmed.