Cases Determined in the St. Louis and the Kansas City Courts of Appeals of the State of Missouri Volume 40 (Paperback)

This historic book may have numerous typos and missing text. Purchasers can download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1890 Excerpt: ...against Bormans, seems to us well taken. It has been held in this state that the sureties of an administrator are conclusively bound, in the absence of fraud or collusion, by judgments against their principal. State to use v. Holt, 27 Mo. 340; Dix v. Morris, 66 Mo. 514; State ex tel. v. Rucker, 59 Mo. 25; Stale ex rel. v. James, 82 Mo. 516; Taylor v. Hunt, 34 Mo. 205; State ex rel. v. Creusbauer, 68 Mo. 254. But, as pointed out in State to use v. Martin, 18 Mo. App. 468, 474, this line of holdings seems to rest on the peculiar language of an administrator's bond, by which the surety agrees to perform all things required by law, "or the order or decree of any court having jurisdic-. tion," and it was held that, there being no such provision LaFayette Building Ass'n v. Kleinhoffer. in a guardian's bond, the sureties of a guardian might show anything contrary to the settlement, if they could. Whether the principle applies to sureties upon undertakings not given in judicial proceedings, such as guarantors, is more doubtful. See the note of Mr. Freeman, 83 Am. Dec. 380, et seq. It has been held by the supreme court of the United States that a judgment confessed by a principal is admissible in evidence to charge his guarantor, though it is not conclusive. Drummond v. Prestman, 12 Wheat. (25 U. S.) 515. We apprehend that this expresses the correct principle; at least, in the absence of direct authority, it is as far as we feel willing to go. There was evidence tending to show that so-called extra work and materials, of the aggregate value of fiftytwo dollars and eight cents, were performed and furnished by Hammer & Weber on a separate order made directly by Joyeux; that these materials were included in their bill against Bormans, and were a part of t...