CJS On Bonds

CJS BONDS SUM Page 1
11 C.J.S. Bonds Summary
Corpus Juris Secundum

Database updated May 2010
Bonds
Karl Oakes, J.D.
Correlation Table
Summary
Scope:
This title discusses instruments in writing under seal whereby the maker binds itself to pay a certain sum of
money absolutely or conditionally. Discussed herein also are the nature of such instruments as well as the re-
quisites thereof and their validity and incidents. The construction, operation, and effect in general of these in-
struments are discussed in this title as are also their negotiability and transfer, and the rights of transferees there-
of.
Treated Elsewhere:
Bonds made by corporations, see C.J.S., Corporations 751 to 756
Bonds made by infants, see C.J.S., Infants 269
Bonds made by governments, see C.J.S., States 437 to 455; C.J.S., United States 139 to 148
Bonds made by political or municipal bodies, see C.J.S., Counties 349 to 368; C.J.S., Municipal Corpor-
ations 1645 to 1746; C.J.S., Schools and School Districts 522 to 556
Bonds for bottomry and respondentia, see C.J.S., Shipping 221 to 231
Indemnity bonds, see C.J.S., Indemnity 1 et seq.
Mortgage bonds, see C.J.S., Mortgages 1 et seq.
Bonds for performance of fiduciary duties, see C.J.S., Executors and Administrators 71 to 75; C.J.S.,
Guardian and Ward 281 to 307; C.J.S., Trusts 759 to 777
Bonds for performance of official duties, see C.J.S., Officers and Public Employees 355 to 385; C.J.S.,
Sheriffs and Constables 236 to 458
Bonds incident to contracts or transactions involving title to, or conveyance of, real property, see C.J.S.,
Vendor and Purchaser 22, 45
Particular bonds required in, or incident to, certain remedies or legal proceedings, see C.J.S., Arrest 91
C.J.S., Attachment 138 to 176, 345 to 391, 452 to 463; C.J.S., Bail; Release and Detention Pending Proceed-
ings 1 et seq.
Promissory notes under seal, see C.J.S., Bills and Notes 16
Subrogation to the rights of obligees, see C.J.S., Subrogation 1 et seq.
Sureties' distinct rights and liabilities, see C.J.S., Principal and Surety 1 et seq.
Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
CJS BONDS SUM
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2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

CJS BONDS I REF Page 1
11 C.J.S. Bonds I Refs.

Bonds
Karl Oakes, J.D.
I. In General
Topic Summary Correlation Table
Research References
A.L.R. Library
A.L.R. Index, Bonds and Undertakings
West's A.L.R. Digest, Bonds 1
CJS BONDS I REF
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11 C.J.S. Bonds 1

Bonds
Karl Oakes, J.D.
I. In General
Topic Summary References Correlation Table
1. Definition and nature
West's Key Number Digest
West's Key Number Digest, Bonds 1

A bond is an obligation in writing, usually under seal, binding the obligor to pay a sum of money to the ob-
ligee, which may be conditioned upon performance.
In a technical sense a bond is an obligation in writing, generally under seal, binding the obligor to pay a sum
of money to the obligee,[1] upon the occurrence of an event or condition.[2] While in common parlance bonds
are not included in the term contracts, and are not so treated by law writers or in the decisions of the courts,[3]
a bond is simply a contract[4] by the obligor to pay a debt.[5] A bond, like other contracts, may contain a
promise, which is a manifestation of intention to act or refrain from acting in a specified way, and may contain
a condition, which is an event that must occur, or a circumstance that must exist, in order for the promisor to
have a duty to perform.[6] Thus, the obligor's contract to pay may be conditioned upon performance of the con-
tract in accordance with its plans, specifications, and conditions.[7] A bond is single or double, simple or condi-
tional, according as the obligor binds himself or herself, his or her heirs, etc., to pay a certain sum to another at a
specified date, or adds a condition that, if the obligor does or forbears to do some act, the obligation shall be
void.[8] The ordinary form of bond used is a double or conditional bond, consisting of two parts, namely, the
obligation, and the condition.[9]
Statutory provisions, not expressly defining a bond, but providing that certain other instruments shall be in-
cluded therein for specified purposes, do not restrict or enlarge the definition of a bond beyond the purposes spe-
cified.[10]
Types of bonds.
At common law, there were originally three kinds of bonds, a simple bond, a penal bond, conditioned for
the payment of money, and a penal bond conditioned that a collateral thing would be done.[11]
A legally-mandated bond is a secondary obligation required by law, whether the obligee or beneficiary is a
government, a class of persons to whom the principal obligor may owe an obligation, or a particular person.[12]
Statutory bonds and common-law bonds are to be distinguished, in that the latter conform to a statute while
the former do not, although so intended.[13] That is, a statutory bond is generally one required by some statute.[
14] Where a statute requires a public officer to execute an official bond, a bond so given is a statutory bond.[15]
Where a bond voluntarily given is not authorized by, or does not comply with, the statute it may take effect as a

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common-law bond.[16]
A debenture is a form of bond[17] which may be defined generally as a debt secured only by the debtor's
earning power, not a lien on any specific asset.[18]
An eventual condemnation money bond is one wherein the makers agree to pay to payee therein any judg-
ment which he may recover against the principal in a suit in which the bond is given.[19] Litigation bonds en-
sure the payment of adjudicated liabilities, thereby contributing to judicial finality.[20]
A bond to satisfy a lien guarantees that if a lien claimant is finally adjudged to be entitled to recover upon
the lien, the claimant shall be paid at least the amount for which the lien was filed plus costs.[21]
Other types of bonds include bonds for bottomry and respondentia,[22] indemnity bonds,[23] mortgage
bonds,[24] bonds for performance of fiduciary duties,[25] bonds for performance of official duties,[26] and
bonds incident to contracts or transactions involving title to, or conveyance of, real property.[27]
[FN1] S.C.U. S. Rubber Products v. Town of Batesburg, 183 S.C. 49, 190 S.E. 120, 110 A.L.R. 144
(1937).
Sum certain
Conn. Rosado v. Bridgeport Roman Catholic Diocesan Corp., 77 Conn. App. 690, 825 A.2d 153
(2003), judgment rev'd on other grounds, 276 Conn. 168, 884 A.2d 981 (2005).
[FN2] Conn. Rosado v. Bridgeport Roman Catholic Diocesan Corp., 276 Conn. 168, 884 A.2d 981
(2005).
[FN3] Tex.City of Tyler v. St. Louis Southwestern Ry. Co. of Texas, 99 Tex. 491, 91 S.W. 1 (1906),
modified on other grounds on reh'g, 93 S.W. 997 (Tex. 1906).
[FN4] U.S.Pennsylvania Nat. Mut. Cas. Ins. Co. v. City of Pine Bluff, 354 F.3d 945 (8th Cir. 2004).
Minn.Whitehill v. Seaway Port Authority of Duluth, Minn., 349 N.W.2d 313 (Minn. Ct. App. 1984).
N.J.First Union Nat. Bank v. Penn Salem Marina, Inc., 383 N.J. Super. 562, 893 A.2d 1 (App. Div.
2006), certification granted, 187 N.J. 491, 901 A.2d 954 (2006) and judgment rev'd on other grounds,
190 N.J. 342, 921 A.2d 417 (2007).
[FN5] N.J.First Union Nat. Bank v. Penn Salem Marina, Inc., 383 N.J. Super. 562, 893 A.2d 1 (App.
Div. 2006), certification granted, 187 N.J. 491, 901 A.2d 954 (2006) and judgment rev'd on other
grounds, 190 N.J. 342, 921 A.2d 417 (2007).
Evidence of indebtedness
Kan.First State Bank of Kansas City v. Bone, 122 Kan. 493, 252 P. 250 (1927).
[FN6] Wash. Colorado Structures, Inc. v. Insurance Co. of the West, 161 Wash. 2d 577, 167 P.3d

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1125 (2007).
[FN7] Pa. Township of Indiana v. Acquisitions & Mergers, Inc., 770 A.2d 364 (Pa. Commw. Ct.
2001).
[FN8] Mo.Burnside v. Wand, 170 Mo. 531, 71 S.W. 337 (1902).
Neb.Rawson v. Taylor, 69 Neb. 473, 95 N.W. 1033 (1903).
[FN9] Mo.Burnside v. Wand, 170 Mo. 531, 71 S.W. 337 (1902).
[FN10] U.S.U.S. v. Ryder, 110 U.S. 729, 4 S. Ct. 196, 28 L. Ed. 308 (1884).
[FN11] Or.Title & Trust Co. v. U.S. Fidelity & Guaranty Co., 138 Or. 467, 7 P.2d 805 (1932).
[FN12] Conn.Ames v. Commissioner of Motor Vehicles, 70 Conn. App. 790, 802 A.2d 126 (2002),
judgment aff'd, 267 Conn. 524, 839 A.2d 1250 (2004).
[FN13] U.S.Fidelity & Deposit Co. of Maryland v. Duke, 293 F. 661 (C.C.A. 9th Cir. 1923).
[FN14] Ariz.Southern Surety Co. v. Cochise County, 27 Ariz. 473, 233 P. 897 (1925).
[FN15] Mich.Lawrence v. American Sur. Co. of New York, 263 Mich. 586, 249 N.W. 3, 88 A.L.R.
535 (1933).
[FN16] Mich.Lawrence v. American Sur. Co. of New York, 263 Mich. 586, 249 N.W. 3, 88 A.L.R.
535 (1933).
Mo.Barnes v. Webster, 16 Mo. 258, 1852 WL 4093 (1852).
Mont.Hedderick v. Poutet, 6 Mont. 345, 12 P. 765 (1887).
[FN17] Mo.Lorimer v. McGreevy, 229 Mo. App. 970, 84 S.W.2d 667 (1935).
[FN18] Tex.Tidrow v. Roth, 189 S.W.3d 408 (Tex. App. Dallas 2006).
Bond unsecured by lien
U.S.Eliasen v. Itel Corp., 82 F.3d 731 (7th Cir. 1996).
[FN19] Ga.U.S. Fidelity & Guaranty Co. v. Tucker, 165 Ga. 283, 140 S.E. 866 (1927).
[FN20] Or.Valencich v. TMT Homes of Oregon, Inc., 193 Or. App. 47, 88 P.3d 300 (2004).
[FN21] Wyo.Dewey v. Wentland, 2002 WY 2, 38 P.3d 402 (Wyo. 2002).
[FN22] C.J.S., Shipping 221 to 231.
[FN23] C.J.S., Indemnity 1 et seq.
[FN24] C.J.S., Mortgages 1 et seq.

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[FN25] C.J.S., Executors and Administrators 71 to 75; C.J.S., Guardian and Ward 281 to 307;
C.J.S., Trusts 759 to 777.
[FN26] C.J.S., Officers and Public Employees 355 to 385; C.J.S., Sheriffs and Constables 236 to
458.
[FN27] C.J.S., Vendor and Purchaser 22, 45.
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Bonds
Karl Oakes, J.D.
I. In General
2. Distinctions

Bonds are distinguishable from such other instruments as undertakings, mortgages, warrants, and stocks.
The chief distinction between a bond and an undertaking is that the principal must be a party to a bond but
need not be a party to an undertaking.[1] In other respects the terms bond and undertaking may be regarded
as having the same meaning and may be used interchangeably.[2]
A bond is a primary contract to pay, while a mortgage is a separate contract to secure payment.[3]
Warrants are general orders payable where funds are found and provision is made that they shall be paid in
the order of presentation, but bonds are obligations payable at a definite time, running through a series of years,
payable on maturity, independent of any presentation.[4]
Stocks.
The term bonds has been held not to include stocks.[5] Whereas a bond of a corporation is an obligation
to pay a fixed sum, with stated interest, which may or may not be secured, but if it is, and the security proves in-
sufficient, the indebtedness is not thereby wiped out,[6] stock confers on the holder a part ownership of the as-
sets and the right to participate according to the amount of his or her stock in the surplus profits of the corpora-
tion, and in the assets remaining after the payment of debts on dissolution.[7]
[FN1] Mont.Russell v. Chicago, B. & Q. Ry. Co., 37 Mont. 1, 94 P. 488 (1908).
[FN2] Mont.Russell v. Chicago, B. & Q. Ry. Co., 37 Mont. 1, 94 P. 488 (1908).
[FN3] Mich.Mendelson v. Realty Mortg. Corp., 257 Mich. 442, 241 N.W. 154 (1932).
[FN4] U.S.Shelley v. St. Charles County Court, 21 F. 699 (C.C.E.D. Mo. 1884).
[FN5] N.H.Benton v. Benton, 63 N.H. 289, 1884 WL 10419 (1884).

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[FN6] N.Y.Cass v. Realty Securities Co., 148 A.D. 96, 132 N.Y.S. 1074 (1st Dep't 1911), aff'd, 206
N.Y. 649, 99 N.E. 1105 (1912).
[FN7] N.Y.Cass v. Realty Securities Co., 148 A.D. 96, 132 N.Y.S. 1074 (1st Dep't 1911), aff'd, 206
N.Y. 649, 99 N.E. 1105 (1912).
CJS BONDS 2
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11 C.J.S. Bonds 3

Bonds
Karl Oakes, J.D.
I. In General
3. DistinctionsRecognizance

In the strict sense of the word, a recognizance is a bond.
While, in the strict sense of the word, a recognizance is a bond,[1] it has been distinguished in that a bond is
generally sealed by the obligor while a recognizance need not be, and a bond creates a debt by specialty, where-
as a recognizance creates a debt by record, and in this respect is like a judgment.[2] Furthermore, while a bond
which is attested by the signature and seal of the obligor creates a fresh and new obligation, a recognizance is an
acknowledgment of record of an already existing debt.[3]
The difference between a recognizance and a common bond has been regarded as largely one of form, and
not merely in common speech, but also in statutes, the one or the other term is often used without regard to the
technical distinction between the two.[4] A recognizance is equal in solemnity to, and in some respects at com-
mon law takes priority over, a common bond.[5]
[FN1] Conn.Vincent v. Mutual Reserve Fund Life Ass'n, 75 Conn. 650, 55 A. 177 (1903).
[FN2] IowaComfort v. Kittle, 81 Iowa 179, 46 N.W. 988 (1890).
OhioState v. Crippen, 1 Ohio St. 399, 1853 WL 42 (1853).
[FN3] Minn.In re Brown's Will, 35 Minn. 307, 29 N.W. 131 (1886).
[FN4] Kan.State v. Price, 88 Kan. 724, 129 P. 940 (1913).
[FN5] Neb.King v. State, 18 Neb. 375, 25 N.W. 519 (1885).
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11 C.J.S. Bonds II Refs.

Bonds
Karl Oakes, J.D.
II. What Law Governs
Research References
A.L.R. Library
West's A.L.R. Digest, Bonds 2 , 49 , 75
CJS BONDS II REF
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Bonds
Karl Oakes, J.D.
4. Generally

The law of the place where a bond is executed generally governs its validity, construction, and negotiability.
Matters affecting remedy are governed by the law of the forum.
A bond, as any other contract, is governed as to its intrinsic validity and effect by the law with reference to
which the parties intended, or fairly may have been presumed to have intended, to contract,[1] unless such law is
in contravention of the policy and laws of the forum and if given effect will cause injury and inconvenience to
the citizens of the forum.[2] Accordingly, as a general rule the law of the place where a bond is executed gov-
erns its validity, construction, and negotiability,[3] particularly where it is also there payable.[4] A bond is ex-
ecuted, within this rule, at the place where the last act in its execution is performed.[5]
On the other hand, where a bond is executed in one place and is to be performed in another, in the absence
of an intent to the contrary appearing in the instrument, the parties are presumed to have contracted with refer-
ence to the law of that place, and the law of the place of performance will govern.[6] In relation to the law of the
remedy on a bond and other procedural matters, the law of the forum applies.[7]
A bond given under an act of Congress must be construed with regard to such act and the general principles
of law which are applicable, and such bond is not, therefore, governed either as to its character or effect by the
local law.[8]
Indorsement and transfer.

The indorsement and transfer of a bond is in itself a distinctive and substantive contract and will be gov-
erned by the law of the place where such contract is formed,[9] unless it is executed to be performed in another
state, in which case its negotiability will be governed by the law of such other state.[10] A bond given in one
state, not payable at any particular place without the same state, may be indorsed in another state so as to be en-
forced in the state where given.[11]

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11 C.J.S. Bonds 4
[FN1] N.Y.Porte v. Polachek, 150 Misc. 891, 270 N.Y.S. 807 (Mun. Ct. 1934).
[FN2] N.Y.Wylie v. Speyer, 62 How. Pr. 107, 1881 WL 11649 (N.Y. Sup 1881).
[FN3] U.S.In re Motor Products Mfg. Corp., 90 F.2d 8 (C.C.A. 9th Cir. 1936).
Mich. Merchants' Nat. Bank v. Detroit Trust Co., 258 Mich. 526, 242 N.W. 739, 85 A.L.R. 350
(1932); Paepcke v. Paine, 253 Mich. 636, 235 N.W. 871, 75 A.L.R. 1205 (1931).
[FN4] Mich.Merchants' Nat. Bank v. Detroit Trust Co., 258 Mich. 526, 242 N.W. 739, 85 A.L.R. 350
(1932); Paepcke v. Paine, 253 Mich. 636, 235 N.W. 871, 75 A.L.R. 1205 (1931).
[FN5] Nev.Alcalda v. Morales, 3 Nev. 132, 1867 WL 2039 (1867).
[FN6] Me.Carey v. Mackey, 82 Me. 516, 20 A. 84 (1890).
[FN7] N.Y.Wylie v. Speyer, 62 How. Pr. 107, 1881 WL 11649 (N.Y. Sup 1881).
[FN8] U.S.U.S. v. Stephenson's Ex'rs, 27 F. Cas. 1305, No. 16386 (C.C.D. Ill. 1839).
[FN9]
Sale on New York Stock Exchange completed where made
Mo.Lorimer v. McGreevy, 229 Mo. App. 970, 84 S.W.2d 667 (1935).
Negotiability
A bond given in another state, where there is no statute making bonds negotiable, may be indorsed in
any place where bonds are negotiable, so as to give a right of action thereon.
N.C.Grace v. Hannah, 51 N.C. 94, 6 Jones 94, 1858 WL 1763 (1858).
[FN10] OhioCurtiss v. Hutchinson, Bingham & Co., 4 Ohio Dec. Rep. 19, Cleve. Law Rec. 19, 1855
WL 3206 (Ohio Dist. Ct. 1855) (Ohio Dist.).
[FN11] N.C.Grace v. Hannah, 51 N.C. 94, 6 Jones 94, 1858 WL 1763 (1858).
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Bonds
Karl Oakes, J.D.
5. Express stipulation

Stipulations made in a bond that it is to be governed by the laws of a particular state will generally be given
effect.
The parties to a bond may stipulate that it shall be governed by the laws of a particular state, and, if such
stipulation is fairly made, the courts of another state in which suit is brought on the bond should give effect
thereto.[1] The fact that, as an incident to such a bond, the obligor has secured it by a mortgage upon real estate
located in the foreign state, where suit is brought to enforce it, does not abrogate the stipulation.[2]
Where the bond is made in one state conditioned to be construed by the laws of another state, and no points
in the law of the latter are shown to differ from those of the former in regard to the legal effect of the bond, its
construction will be determined according to the laws of the state where the instrument was made.[3]
Rights of third parties.

As regards the rights of third parties between themselves, the negotiability of bonds or debentures issued in
accordance with the laws of a particular state and containing a provision that all covenants and agreements they
contain should be construed by the laws of that state should be decided by the laws of the state where such
bonds were acquired by the holder as well as from an examination of the bonds themselves.[4]
[FN1] Kan.Midland Savings & Loan Co. v. Solomon, 71 Kan. 185, 79 P. 1077 (1905).
[FN2] Kan.Midland Savings & Loan Co. v. Solomon, 71 Kan. 185, 79 P. 1077 (1905).
[FN3] Me.Scottish Commercial Ins. Co. v. Plummer, 70 Me. 540, 1880 WL 4091 (1880).
[FN4] Mo.Lorimer v. McGreevy, 229 Mo. App. 970, 84 S.W.2d 667 (1935).

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CJS BONDS III REF Page 1
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Bonds
Karl Oakes, J.D.
III. Requisites and Validity
Research References
A.L.R. Library
West's A.L.R. Digest, Bonds 1 , 3 , 6 , 12 to 22 , 26 , 31 , 37 , 42 to 44
CJS BONDS III REF
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11 C.J.S. Bonds III A Refs.

Bonds
Karl Oakes, J.D.

A. In General
Research References
A.L.R. Library
West's A.L.R. Digest, Bonds 1,3
CJS BONDS III A REF
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11 C.J.S. Bonds 6

Bonds
Karl Oakes, J.D.

A. In General
6. Certainty

It is sufficient if the terms and conditions of a bond can be made clear and certain and the intention of the
parties plainly appears.
Although the wording of a bond may be vague or uncertain, yet if, considering the purpose for which given
and in connection with evidence to explain the language used, the terms and conditions can be made clear and
certain, the instrument will be valid.[1] It is sufficient if the parties' intention plainly appears, even though it is
not fully and particularly expressed.[2]
A bond, the prepared form of which was originally intended for a public works contract but asserted by the
obligees as applicable to a contract for construction of their personal residence, is not void for uncertainty where
despite omissions and other deficiencies therein it clearly appeared to be intended to cover performance of the
contract for construction of such residence.[3]
[FN1] Minn.Longfellow v. McGregor, 56 Minn. 312, 57 N.W. 926 (1894).
[FN2] Cal.Risley v. Clark, 121 Cal. App. 86, 8 P.2d 872 (2d Dist. 1932).
[FN3] Cal.Pierce v. Wright, 117 Cal. App. 2d 718, 256 P.2d 1049 (1st Dist. 1953).
CJS BONDS 6
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11 C.J.S. Bonds 7

Bonds
Karl Oakes, J.D.

A. In General
7. Parties

To be valid, a bond must have an obligor and an obligee, who must be separate persons.
A bond to be valid, like any other contract, requires at least two contracting parties, one called the obligor
and the other the obligee.[1] More specifically, there must be an obligor, who is bound to do what it is agreed
shall be done,[2] and an obligee, who must be a natural or artificial person, whom the law recognizes as being
the subject of rights,[3] and who can, if there is a default, enforce the obligation against the obligor.[4]
Same person as obligor and obligee.

A person cannot be both the obligor and the obligee in a bond,[5] even in connection with others,[6] or in
another capacity,[7] and a bond so executed is unenforceable so far at least as it affects one who occupies there-
under this dual relation.[8] Although one of the obligees is also the obligor, if separate duties are required of the
other obligees, they alone may sue on the bond.[9] A mere identity of names, however, does not necessarily
show that the obligor and the obligee are the same person.[10]
[FN1] Mo.White v. Greenlee, 330 Mo. 135, 49 S.W.2d 132 (1932).
[FN2] U.S.Royal Oak Drain Dist., Oakland County v. Keefe, 87 F.2d 786 (C.C.A. 6th Cir. 1937).
[FN3] Me.Drew v. Drew, 37 Me. 389, 1854 WL 1947 (1854).
[FN4] N.Y.Merrill v. Equitable Surety Co. of New York, 131 Misc. 541, 227 N.Y.S. 266 (Sup 1928).
[FN5] N.Y. DEWITT C. HALSTEAD, administrator, &c. of ELIZA HALSTEAD, deceased, v. JO-
NAS C. MCCHESNEY, 50 Barb. 34, 1862 WL 5285 (N.Y. Sup 1862), aff'd, 2 Abb. Dec. 310, 2 Keyes
92 (N.Y. 1865).
[FN6] N.Y.Smith v. Lusher, 5 Cow. 688, 1825 WL 1871 (N.Y. 1825).

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[FN7] Ky.Allin v. Shadburne's Ex'r, 31 Ky. 68, 1 Dana 68, 1833 WL 2419 (1833).
[FN8] Ky.Cecil v. Laughlin, 43 Ky. 30, 4 B. Mon. 30, 1843 WL 3509 (1843).
[FN9] Ky.Cecil v. Laughlin, 43 Ky. 30, 4 B. Mon. 30, 1843 WL 3509 (1843).
[FN10] Ky.Allin v. Shadburne's Ex'r, 31 Ky. 68, 1 Dana 68, 1833 WL 2419 (1833).
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Bonds
Karl Oakes, J.D.

A. In General
8. PartiesSurety

In the absence of statutory requirement, the existence of a surety on a bond is unnecessary, but, where so re-
quired, there must be a compliance with the statutory demands as to number and qualifications.
Suretyship status is created through a tripartite agreement whereby one party, the surety, becomes liable for
the principal's or obligor's debt or duty to the third party obligee.[1] Unless sureties are required by statute, if the
instrument is such as comes under the legal definition of a bond, the fact that it is without surety is immaterial.[2
]
Number.
Where sureties are required by statute or order of court, a bond with but one surety instead of two, as re-
quired, will be good as a common-law bond, unless the statute or order expressly provides that a bond executed
in any other manner than therein designated shall be void.[3] Likewise, a person for whose benefit a statutory
bond is taken may waive the objection that it has but one surety instead of two as required by statute.[4]
Qualifications.
Certain requirements are generally imposed as essential to the qualification of a person as a surety on cer-
tain kinds of bonds.[5] This includes a requirement that he be a resident of the state,[6] although it has been held
that the nonresidence of a surety is no objection if he or she has sufficient property within the state.[7] The
surety must ordinarily justify in an amount equal to, or greater than, the amount of the penalty of the bond,[8]
and, under some statutes, the surety must justify in double the amount of the penalty.[9]
[FN1] U.S.Pennsylvania Nat. Mut. Cas. Ins. Co. v. City of Pine Bluff, 354 F.3d 945 (8th Cir. 2004).
[FN2] La.Brenard Mfg. Co. v. Gibbs, 9 La. App. 137, 119 So. 483 (2d Cir. 1928).
Statute as extending requirement to official bonds only
Minn.Blied v. Barnard, 120 Minn. 399, 139 N.W. 714 (1913).

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[FN3] Ky.U.S. Fidelity & Guar. Co. v. Com., 31 Ky. L. Rptr. 1179, 104 S.W. 1029 (Ky. 1907).
[FN4] N.Y.Shaw v. Tobias, 3 N.Y. 188, 1849 WL 5375 (1849).
[FN5] Me.Jose v. Hewett, 50 Me. 248, 1861 WL 1714 (1861).
[FN6] Ill.People, for Use of Gobin v. May, 198 Ill. App. 625, 1916 WL 1999 (4th Dist. 1916), aff'd,
276 Ill. 332, 114 N.E. 685 (1916).
[FN7] Ky.Herd v. Cist, 12 S.W. 466 (Ky. 1889).
[FN8] IowaLane v. Goldsmith, 23 Iowa 240, 1867 WL 312 (1867).
N.Y.Carroll v. Sand, 10 Paige Ch. 298, 4 N.Y. Ch. Ann. 985, 1843 WL 4817 (N.Y. Ch. 1843).
[FN9] N.Y.Carroll v. Sand, 10 Paige Ch. 298, 4 N.Y. Ch. Ann. 985, 1843 WL 4817 (N.Y. Ch. 1843).
CJS BONDS 8
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Bonds
Karl Oakes, J.D.

B. Form and Contents
Research References
A.L.R. Library
CJS BONDS III B REF
END OF DOCUMENT

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Bonds
Karl Oakes, J.D.

9. Generally

Generally, strict compliance with statutory forms as to bonds is unnecessary, if the essential elements are
present.
While it is essential to the validity of a bond that the instrument should be written either on paper or parch-
ment,[1] no particular form is necessary. Accordingly, any form of words in writing, under seal, acknowledging
a debt or binding the maker to pay a debt, and naming an obligee, is sufficient.[2] Moreover, strict compliance
with the letter of a statute in giving form of a bond is generally unnecessary where its language is permissive or
directory.[3]
Place of payment.
It is not necessary to the validity of a bond that it should name a place of payment.[4]
[FN1] Wis.West v. City of Eau Claire, 89 Wis. 31, 61 N.W. 313 (1894).
[FN2] Del.Warder, Bushnell & Glessner Co. v. Stewart, 16 Del. 275, 2 Marvel 275, 36 A. 88 (Super.
Ct. 1896).
Md.Sharp v. Bates, 102 Md. 344, 62 A. 747 (1905).
[FN3] Ky.Ewing v. Union Central Bank, 254 Ky. 623, 72 S.W.2d 4 (1934).
[FN4] U.S.Parsons v. Jackson, 99 U.S. 434, 25 L. Ed. 457, 1878 WL 18230 (1878).
CJS BONDS 9
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11 C.J.S. Bonds 10

Bonds
Karl Oakes, J.D.

10. Condition

A conditional bond must set out the condition.
Where the bond is a conditional one, the condition should be contained in the bond,[1] and, if it is not, no li-
ability thereon will be incurred.[2] However, the position of the condition in the bond is not usually material,
and, indeed, it has been held that the condition may even be placed after the signature of the obligor.[3]
A condition, as applied to a bond, is the expression of an event or contingency on the happening of which
the obligation attaches,[4] or is the recital of the circumstances and contingencies under and on which the bond
shall become void.[5] It is not necessary that all the details of its subject matter should be particularly and spe-
cifically mentioned in the condition.[6]
Payment out of particular fund.

The mere fact that a bond is payable out of a particular fund does not render it conditional.[7]
[FN1] Me.Eugley v. Sproul, 115 Me. 463, 99 A. 443 (1916).
[FN2] Ill.Fitzgerald v. Staples, 88 Ill. 234, 1878 WL 9851 (1878).
[FN3] N.Y.Reed v. Drake, 7 Wend. 345, 1831 WL 3110 (N.Y. Sup 1831).
Va.Argenbright v. Campbell, 13 Va. 144, 3 Hen. & M. 144, 1808 WL 622 (1808).
[FN4] Tex.Ferguson v. Ferguson, 69 S.W.2d 592 (Tex. Civ. App. Eastland 1934).
[FN5] Neb.Rawson v. Taylor, 69 Neb. 473, 95 N.W. 1033 (1903).
[FN6] Neb.Rawson v. Taylor, 69 Neb. 473, 95 N.W. 1033 (1903).
[FN7] Ky.Caldwell & Co.'s Ancillary Receiver v. Landrum, 260 Ky. 77, 83 S.W.2d 876 (1935).

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11 C.J.S. Bonds 11

Bonds
Karl Oakes, J.D.

11. Recitals as to parties

A failure to recite the obligor's name in a bond is immaterial if the bond is properly executed and signed by
him or her and an intention to charge him is shown.
The fact that an obligor's name is not recited in the body of the bond, or is incorrectly recited therein, does
not affect the validity of the bond or his or her liability thereunder, if the bond is otherwise properly executed
and signed by the obligor,[1] and if the bond and circumstances clearly show an intention to charge him or her.[
2]
Identity of obligee.
The identity of the obligee must appear in the bond.[3] A bond with a blank left for the name of the obligee
is a nullity,[4] and proof of delivery of it to a particular person generally is not sufficient.[5] The obligee's name
should appear in that portion of the bond which creates the obligation, commonly called the obligatory portion
as distinguished from the condition.[6] The omission, however, expressly to designate a person as obligee will
not render a bond void where the identity of the obligee may be gathered from the whole instrument.[7] So, also,
an incorrect designation of the obligee may not be fatal.[8] Where a bond is given in pursuance of an order dir-
ecting the execution thereof to be approved by the court, the obligee should be described in the capacity desig-
nated in such order, and, where not so described and a recovery in the capacity designated would not come with-
in the protection thereof, such bond is not made good by the approval of the court, since in approving the bond
the court has no power to modify the order.[9]
Bonds payable to bearer are generally recognized as valid notwithstanding an obligee is not expressly de-
scribed in the bond.[10]
[FN1] Kan.Smith v. Easter, 101 Kan. 245, 166 P. 510 (1917).
Okla.Craig v. Spencer, 1916 OK 302, 56 Okla. 259, 156 P. 172 (1916).

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11 C.J.S. Bonds 11
[FN2] Ala.Wood v. Coman, 56 Ala. 283, 1876 WL 1253 (1876).
OhioPartridge v. Jones, 38 Ohio St. 375, 1882 WL 85 (1882).
Vt.Richmond v. Woodard, 32 Vt. 833, 1860 WL 4967 (1860).
[FN3] Wis.West v. City of Eau Claire, 89 Wis. 31, 61 N.W. 313 (1894).
[FN4] Colo.People v. Pacific Sur. Co., 50 Colo. 273, 109 P. 961 (1910).
[FN5] N.C.Phelps v. Call, 29 N.C. 262, 7 Ired. 262, 1847 WL 1091 (1847).
[FN6] R.I.Garrett v. Shove, 15 R.I. 538, 9 A. 901 (1887).
[FN7] Mo.Stine v. Southwest Bank of St. Louis, 108 S.W.2d 633 (Mo. Ct. App. 1937).
S.C.General Motors Acceptance Corp. v. Hutto, 136 S.C. 207, 134 S.E. 232 (1926).
Tex.Hall v. Hall, 198 S.W. 636 (Tex. Civ. App. Austin 1917), writ refused, (June 12, 1918).
[FN8] Ky.U.S. Fidelity & Guar. Co. v. Com., 31 Ky. L. Rptr. 1179, 104 S.W. 1029 (Ky. 1907).
[FN9] N.Y.Witherbee v. Witherbee, 55 A.D. 181, 66 N.Y.S. 1036 (3d Dep't 1900).
[FN10] N.Y.Hibbs v. Brown, 112 A.D. 214, 98 N.Y.S. 353 (1st Dep't 1906), aff'd, 190 N.Y. 167, 82
N.E. 1108 (1907).
CJS BONDS 11
END OF DOCUMENT

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Bonds
Karl Oakes, J.D.

12. Recitals as to amount or penalty

A bond should contain in some form a statement of the amount or penalty involved.
There is authority that a bond in which the amount or penalty thereof is omitted is void, as such omission is
a defect which cannot be supplied by oral proof of the amount intended.[1] It has also been held, however, that
the only effect of such an omission is to make the bond commensurate with the condition,[2] and that al bond
without a penalty may be good as a covenant or agreement.[3]
Where the amount is expressed, the mere omission of the word dollars or the sign therefor will not affect
the validity of the bond,[4] and, in the absence of statute, it is not necessary that the bond should designate any
particular form or kind of money.[5]
The mere fact that the officials designated by statute to fix the amount of penalty of an official bond failed
so to act does not affect the validity of a bond which has been accepted and acted on by the obligee.[6]
[FN1] Ala.Harbin v. Nations, 214 Ala. 649, 108 So. 749 (1926).
[FN2] N.Y.Dodge v. St. John, 96 N.Y. 260, 1884 WL 12356 (1884).
[FN3] Neb.Pohlenz v. Panko, 106 Neb. 156, 182 N.W. 972 (1921).
[FN4] Mo.Grant v. Brotherton's Adm'r, 7 Mo. 458, 1842 WL 3665 (1842).
[FN5] Cal.Kings County v. Rea, 164 Cal. 508, 129 P. 772 (1913).
[FN6] Miss.Marshall v. Hamilton, 41 Miss. 229, 1866 WL 1932 (1866).
CJS BONDS 12

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CJS BONDS III C REF Page 1
11 C.J.S. Bonds III C Refs.

Bonds
Karl Oakes, J.D.

C. Execution
Research References
A.L.R. Library
West's A.L.R. Digest, Bonds 12 to 20
CJS BONDS III C REF
END OF DOCUMENT

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Bonds
Karl Oakes, J.D.

C. Execution
13. Generally

The courts have adjudicated various matters pertaining to the execution of bonds.
If no penalty is prescribed for a refusal to execute bonds required by law, the execution of such bonds can-
not be enforced.[1]
The validity of a bond is not affected by stamping the word duplicate thereon, since a duplicate is not a
mere copy of the original, but has all of the validity of the original.[2]
Execution in blank.
Where one executes and delivers a bond, such person's liability will not be affected by the fact that there are
blanks in the bond, provided that he or she executes it with knowledge thereof, and that there is no fraud in
filling up such blanks.[3]
[FN1] La.Commissioners of Immigration v. Brandt, 26 La. Ann. 29, 1874 WL 7456 (1874).
[FN2] N.Y. Reynolds v. Title Guarantee & Trust Co., 120 Misc. 561, 200 N.Y.S. 105 (Sup 1923),
aff'd on other grounds, 208 A.D. 556, 203 N.Y.S. 851 (2d Dep't 1924), rev'd on other grounds, 240 N.Y.
257, 148 N.E. 514 (1925).
[FN3] Ohio Souhrada v. David, 15 Ohio N.P. (n.s.) 257, 29 Ohio Dec. 496, 1914 WL 1293 (C.P.
1914).
CJS BONDS 13

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Bonds
Karl Oakes, J.D.

C. Execution
14. Date

An absent or erroneous date on a bond is immaterial if the essentials necessary to give it legal and binding
effect are present.
The fact that a bond is erroneously dated, or bears no date at all, will not affect its validity if compliance has
been had with other essentials necessary to give it a legal and binding effect.[1] Accordingly, although blanks
for the day and month are not filled up, it is immaterial if the bond is otherwise regular.[2]
Where a bond bears the date at which it purports to have been made, such date will usually control the time
of its taking effect.[3]
A surety is liable on a bond guaranteeing performance of what it refers to as a written agreement dated a
particular day, even though the underlying contract was in fact dated a week earlier when it was executed by
principal's contracting partner, where the contract was not accepted and executed by the principal until the date
referred to in the bond.[4]
[FN1] Mo.State ex rel. City of Memphis v. Hackman, 273 Mo. 670, 202 S.W. 7 (1918).
[FN2] W.Va.Simmons v. Trumbo, 9 W. Va. 358, 1876 WL 3805 (1876).
[FN3] U.S.Supreme Council Catholic Knights of America v. Fidelity & Cas. Co. of New York, 63 F.
48 (C.C.A. 6th Cir. 1894).
[FN4] N.Y.U.W. Marx Inc. v. Mountbatten Surety Co., Inc., 290 A.D.2d 621, 736 N.Y.S.2d 137 (3d
Dep't 2002).

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CJS BONDS 14
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Bonds
Karl Oakes, J.D.

C. Execution
15. Signature

In the absence of a statute to the contrary, a bond, sealed and delivered, is sufficient without the signature of
the obligor. Although a joint and several bond is signed by a part only of the obligors, it will be valid as to those
signing it.
In the absence of statute, where a bond is sealed and delivered, it is not essential to its validity that it be
signed by the obligor.[1] A party cannot be held liable on a bond which he has not signed or otherwise ex-
ecuted,[2] and an unauthorized signature by a person as agent of one of several obligors does not affect the
validity of the bond as to the other obligors, but may, as to them, be treated as surplusage.[3] However, under
the statutes relative to bonds, the signature of the principal is now generally regarded as essential to the validity
of the bond.[4]
Partial execution.
Although a joint and several bond is signed by a part only of the obligors, it will be valid as to those signing
it.[5]
[FN1] Ark.Jeffery v. Underwood, 1 Ark. 108, 1838 WL 59 (1838).
[FN2] Neb.Storz v. Finkelstein, 50 Neb. 177, 69 N.W. 856 (1897).
[FN3] Va.Rocky Mount Loan & Trust Co. v. Price, 103 Va. 298, 49 S.E. 73 (1904).
[FN4] Mo.Gay v. Murphy, 134 Mo. 98, 34 S.W. 1091 (1896).
[FN5]
Bond not signed by sureties nevertheless binding on principal
Tex.State v. Scholz Bros., 4 S.W.2d 661 (Tex. Civ. App. San Antonio 1928).

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Bonds
Karl Oakes, J.D.

C. Execution
16. SignatureManner and form

Provided the signature on a bond is made by the obligor for the purpose and with the intention of binding
himself or herself, the manner and form of the signature is generally immaterial.
Independent of any statutory requirement, the manner and form of the signature, when made, is immaterial,
provided it is made by the obligor for the purpose and with the intention of binding himself or herself.[1] If
made with this intention, the signature may consist of a mark or sign,[2] and in some jurisdictions this rule is, in
effect, prescribed by statute.[3] The signature may consist of a printed facsimile of the maker's autograph adop-
ted by him or her for that purpose.[4] The order of signatures as to the time of signing the instrument is immater-
ial, provided the bond is fully executed by all who purport to be parties, before its delivery.[5]
[FN1] Okla.Craig v. Spencer, 1916 OK 302, 56 Okla. 259, 156 P. 172 (1916).
Printed signature on bond interest coupon
Or.Toon v. Wapinitia Irr. Co., 117 Or. 374, 243 P. 554 (1926).
[FN2] Ala.Penton v. Williams, 150 Ala. 153, 43 So. 211 (1907).
[FN3] Ky.Terry v. Johnson, 109 Ky. 589, 22 Ky. L. Rptr. 1210, 60 S.W. 300 (1901).
[FN4] Cal.Pennington v. Baehr, 48 Cal. 565, 1874 WL 1399 (1874).
[FN5] Mass.Rundell v. La Fleur, 88 Mass. 480, 6 Allen 480, 1863 WL 3447 (1863).
CJS BONDS 16
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Bonds
Karl Oakes, J.D.

C. Execution
17. SignaturePosition

In the absence of a statute to the contrary, the location of the signature on a bond is immaterial if the signer
had an intention to be bound.
Unless the statute requires a signature to be subscribed to an instrument,[1] it will be sufficient if, with the
intention to constitute a signing, it is inserted in the bond at some other place than at the foot of the instrument.[
2] This would include, for instance, a signature on the back thereof,[3] or in the body of the bond between the
penal part and the condition,[4] or in the place intended for the signature of a witness.[5] The fact that the signa-
tures are not opposite all the scrolls for seals does not impair the validity of the bond.[6]
The fact that one obligor signs on the right side and the other on the left side of the instrument does not im-
pair the bond.[7] Where the parties have signed the bond properly, it is not essential to its validity that their
names also appear in the body of the bond.[8] However, a signature without a seal, on a separate slip of paper
subsequently attached by wafers to the foot of the bond, has been held insufficient to bind one whose name did
not appear elsewhere in the bond.[9]
[FN1] Ind.Wild Cat Branch v. Ball, 45 Ind. 213, 1873 WL 5413 (1873).
[FN2] Okla.Craig v. Spencer, 1916 OK 302, 56 Okla. 259, 156 P. 172 (1916).
[FN3] Mich.Cunningham v. Hawkins, 163 Mich. 317, 128 N.W. 223 (1910).
[FN4] Me.Fournier v. Cyr, 64 Me. 32, 1874 WL 3599 (1874).
[FN5] Mass.Richardson v. Boynton, 94 Mass. 138, 12 Allen 138, 1866 WL 4824 (1866).
[FN6] Pa.Biery v. App, 8 Sadler 54, 4 A. 198 (Pa. 1886).
[FN7] Pa.Steininger v. Hoch's Ex'r, 39 Pa. 263, 1861 WL 5983 (1861).

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11 C.J.S. Bonds 17
[FN8] Ind.Scheid v. Leibshultz, 51 Ind. 38, 1875 WL 6007 (1875).
[FN9] S.C.Gramling v. Woodward, 31 S.C.L. 621, 2 Rich. 621, 1846 WL 2255 (Ct. App. Law 1846).
CJS BONDS 17
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Bonds
Karl Oakes, J.D.

C. Execution
18. Seal

In the absence of statute providing otherwise, a seal is of the essence of a bond, and in its absence an instru-
ment may not be construed as a sealed bond, although it may be enforceable as a common-law obligation.
Bonds are often defined by the courts as obligations in writing under seal.[1] As a general rule, in the ab-
sence of statute providing otherwise, a seal is of the essence of a bond, and no writing can have the qualities
which attach to a bond without the seal of the party executing it,[2] but the absence of a seal will not alone de-
termine the nature of the proposed obligation.[3] In the absence of a seal, an instrument will not be construed as
a sealed bond, even though there is a recital in the body thereof that the obligors and parties have set their hands
and seals thereto.[4]
In its ordinary, popular signification, however, the word bond includes instruments not under seal, by
which the maker binds himself or herself to pay money, or to do some specified act, as well as instruments for
like purposes under seal.[5] It has been held that, although a bond is not sealed, it may nevertheless be enforced,
it being declared in some cases that it is a valid obligation at common law, while in others it is declared that the
omission of the seal is a mere irregularity.[6] Of course, under a statute so providing, a seal is not essential to
give a bond the force and effect of a sealed instrument.[7]
Sufficiency of sealing.
Where the name of an obligor is followed by a scroll, the words witness my hand and seal contained in
the bond sufficiently show that such scroll was intended as his or her seal.[8] A bond will be construed as a
sealed instrument where there is a scroll inclosing the word seal at the end of the signature, although there is
no in testimonium clause.[9] It has also been held that an obligation will be construed as a bond where there is a
scroll after the signature, although the instrument does not purport to be a bond on its face.[10]
One seal and several signatures.

It is not in all cases essential to the validity of a bond that there be a separate seal to each signature, for one
seal may be adopted by two or more signers, and in those cases where the number of seals is less than the num-
ber of signers the existence in the bond of the clause Sealed with our seals, or similar language, will raise the
presumption that two or more of the signers adopted one seal.[11] Where, however, no such recital exists, and

CJS BONDS 18 Page 2
11 C.J.S. Bonds 18
the bond purports to be that of one person only, no presumption of such adoption will arise as to subsequent
signers.[12]
[FN1] Conn. Rosado v. Bridgeport Roman Catholic Diocesan Corp., 276 Conn. 168, 884 A.2d 981
(2005).
Definition of bonds, generally, see 1, 18.
Obligation in writing, generally under seal
S.C.U. S. Rubber Products v. Town of Batesburg, 183 S.C. 49, 190 S.E. 120, 110 A.L.R. 144 (1937).
[FN2] Pa.In re Contest of Election of Burns, 315 Pa. 23, 171 A. 888 (1934).
R.I.City of Providence v. Goldenberg, 44 R.I. 327, 117 A. 225 (1922).
Bond imports a seal
Mass.Mahoney v. U.S. Shipping Bd. Emergency Fleet Corp., 253 Mass. 234, 148 N.E. 454 (1925).
[FN3] S.C.Thomson v. Christopher, 141 S.C. 92, 139 S.E. 178 (1927).
[FN4] R.I.City of Providence v. Goldenberg, 44 R.I. 327, 117 A. 225 (1922).
[FN5] Me.Lane v. Inhabitants of Town of Embden, 72 Me. 354, 1881 WL 3957 (1881).
[FN6] Vt.First Nat. Bank v. Briggs' Assignees, 69 Vt. 12, 37 A. 231 (1894).
[FN7] N.Y.Tully v. Lewitz, 50 Misc. 350, 98 N.Y.S. 829 (App. Term 1906).
[FN8] N.J.Force v. Craig, 7 N.J.L. 272, 1823 WL 1308 (N.J. 1823).
[FN9] Ark.Cummins v. Woodruff, 5 Ark. 116, 1843 WL 322 (1843).
[FN10] Ga.Harden v. Webster, Parmelee & Co., 29 Ga. 427, 1859 WL 2713 (1859).
[FN11] Pa.Com. v. Gutelius, 287 Pa. 441, 135 A. 214 (1926).
[FN12] Pa.In re Hess' Estate, 150 Pa. 346, 24 A. 676 (1892).
CJS BONDS 18
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Bonds
Karl Oakes, J.D.

C. Execution
19. Acknowledgment, attestation, and recording
West's Key Number Digest, Bonds 15 to 18

Acknowledgment, attestation, and recording of bonds are necessary only where required by statute.
A person who signs, seals, and delivers a bond will not be heard to question its validity on the ground that it
was not acknowledged by him or her, or proved at the time of the delivery, unless there is a statute making such
acknowledgment or proof essential to the validity of the instrument.[1] However, if the bond was not subscribed
in the regular way, and there does not appear to have been any intention to authenticate it, it will not be bind-
ing.[2] A bond will not be void where a person who was neither present at the execution of the bond nor duly
authorized to attest the same was procured to sign it as an attesting witness, provided it was not done with a
fraudulent purpose.[3]
Recording and registration.

The registration of bonds in the name of a person is insufficient to establish ownership in such person, as
against another's subsequent possession of the bonds and his or her exercise of acts of ownership over them for a
long period of time.[4] A bond may, in the absence of any law to the contrary, be properly authenticated for re-
cord at a time subsequent to the execution thereof.[5]
Revenue stamps.
Where a statute so requires, bonds may be subject to a revenue tax and required to be stamped.[6] However,
such acts usually exempt certain bonds from the stamp tax, such as bonds given in legal proceedings,[7] and
bonds given to a state, as an instrumentality employed by the state to execute and to enforce its own laws en-
acted in the exercise of its police powers.[8]
[FN1] Va.Board of Sup'rs of Washington County v. Dunn, 68 Va. 608, 27 Gratt. 608, 1876 WL 6359
(1876).
Statute making bonds valid without acknowledgement

CJS BONDS 19 Page 2
11 C.J.S. Bonds 19
Okla.Ussery v. Driver, 1924 OK 1045, 104 Okla. 155, 231 P. 214 (1924).
[FN2] Ark.State v. Wallis, 57 Ark. 64, 20 S.W. 811 (1892).
[FN3] Mass.Adams v. Frye, 44 Mass. 103, 3 Met. 103, 1841 WL 3445 (1841).
[FN4] Pa.In re Wohleber's Estate, 320 Pa. 83, 181 A. 479, 101 A.L.R. 829 (1935).
[FN5] Tex.Stramler v. Coe, 15 Tex. 211, 1855 WL 5002 (1855).
[FN6] Md.Dowler v. Cushwa, 27 Md. 354, 1867 WL 2404 (1867).
[FN7] Nev.Bowers v. Beck, 2 Nev. 139, 1866 WL 1595 (1866).
[FN8] U.S.Ambrosini v. U.S., 187 U.S. 1, 23 S. Ct. 1, 47 L. Ed. 49 (1902).
CJS BONDS 19
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Bonds
Karl Oakes, J.D.

D. Delivery and Acceptance
Research References
A.L.R. Library
CJS BONDS III D REF
END OF DOCUMENT

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Bonds
Karl Oakes, J.D.

20. Generally

Delivery is essential to the validity of a bond, except that in case of a statutory bond, the approving and fil-
ing take the place of delivery. In the absence of a statute or rule of court to the contrary, any act or words on the
part of the obligor to perfect the instrument and to make it at once the property of the obligee constitutes a suffi-
cient delivery.
As a general rule, a bond is not perfected until delivery thereof, and, therefore, delivery is essential to its
validity, and it takes effect from that date.[1] In case of a statutory bond, the approving and filing take the place
of delivery.[2]
Except where there is a statutory provision or order of court designating the mode of delivery,[3] it is suffi-
cient if it is made by any acts or words which show an intention on the part of the obligor to perfect the instru-
ment and to make it at once the property of the obligee.[4] This may be accomplished even though the bond does
not come into the actual possession of the obligee.[5] The strict rules relating to delivery of deeds do not apply
to bonds.[6]
To whom delivered.
The delivery need not be to the obligee, but may be to a third person authorized to receive it, or even to a
stranger for the use and benefit of the obligee,[7] and this is true even where delivery to the obligee is not made,
and is not intended to be made, until the death of the obligor.[8] Delivery to a stranger, to become a delivery to
the obligee, must be a delivery for the use or benefit of the latter, and be accepted by him or her,[9] although a
ratification of such delivery may be presumed, in the absence of a showing to the contrary.[10] Although the
legal title to a bond may be in one person, delivery to the one holding the equitable interest will be sufficient.[11
] Delivery to the obligee may also occur when a bond is delivered to the principal for its signature.[12]
By whom delivered.
A bond must be delivered by the party whose bond it is, or by his or her agent or attorney.[13] Where a
bond is signed and sealed but not delivered to the obligee, and it is afterward put into his or her possession by a
person who has no authority to deliver it, the obligee cannot maintain an action on the instrument.[14]

CJS BONDS 20 Page 2
11 C.J.S. Bonds 20
Redelivery.
A redelivery of a bond previously impeachable and invalid must be an act equal to the making of a new
bond.[15]
[FN1] N.J.Title Guaranty & Surety Co. v. Fusco Const. Co., 90 N.J.L. 630, 101 A. 248 (N.J. Ct. Err.
& App. 1917).
Va.Rhodes v. Walton, 163 Va. 360, 175 S.E. 865 (1934).
[FN2] Ill.Moses v. Royal Indemnity Co., 276 Ill. 177, 114 N.E. 554 (1916).
[FN3] Wis.Whereatt v. Ellis, 103 Wis. 348, 79 N.W. 416 (1899).
[FN5] N.J.Folly v. Vantuyl, 9 N.J.L. 153, 1827 WL 1752 (N.J. 1827).
[FN6] N.Y.Haywood v. Townsend, 4 A.D. 246, 38 N.Y.S. 517 (3d Dep't 1896).
N.J.Acquackanonk Bldg. & Loan Ass'n of Passaic v. Christensen Drug Co., 122 N.J. Eq. 353, 194 A.
69 (Ch. 1937), decree aff'd by, 123 N.J. Eq. 574, 199 A. 377 (Ct. Err. & App. 1938).
[FN8] Ind.Hockett v. Jones, 70 Ind. 227, 1880 WL 6189 (1880).
Va.Frank v. Frank, 100 Va. 627, 42 S.E. 666 (1902).
[FN9] Ill.Morrison v. Kelly, 22 Ill. 609, 1859 WL 6947 (1859).
Ind.Hockett v. Jones, 70 Ind. 227, 1880 WL 6189 (1880).
N.C.Whichard v. Jordan, 51 N.C. 54, 6 Jones 54, 1858 WL 1750 (1858).
[FN10] N.C.Iredell v. Barbee, 31 N.C. 250, 9 Ired. 250, 1848 WL 1397 (1848).
[FN11] Ala.Sykes v. Lewis, 17 Ala. 261, 1850 WL 220 (1850).
[FN12] Colo.Tanco, Inc. v. Houston General Ins. Co., 38 Colo. App. 133, 555 P.2d 1164 (1976).
[FN13] Ala.Bibb v. Reid, 3 Ala. 88, 1841 WL 105 (1841).
Md.State v. Gaver, 115 Md. 250, 80 A. 891 (1911).
[FN14] Mass.Fay v. Richardson, 24 Mass. 91, 7 Pick. 91, 1828 WL 1794 (1828).
Va.Blair v. Security Bank of Richmond, 103 Va. 762, 50 S.E. 262 (1905).
[FN15] Tenn.McNutt v. McMahan, 38 Tenn. 98, 1 Head 98, 1858 WL 2860 (1858).

CJS BONDS 20 Page 3
11 C.J.S. Bonds 20
CJS BONDS 20
END OF DOCUMENT

CJS BONDS 21 Page 1
11 C.J.S. Bonds 21

Bonds
Karl Oakes, J.D.

21. Conditional delivery

A bond may be delivered on condition that it is to be of no effect until the happening of some designated
event, and it is not binding on the obligor, if the obligee has notice thereof, until the condition has been fulfilled.
A bond complete on its face may be delivered on condition that it is not to become effective until the hap-
pening of some designated event.[1] Where so delivered it is not the bond of the party signing it until the condi-
tion is complied with,[2] provided the obligee or his agent has notice of the condition at the time of the deliv-
ery.[3] The delivery, if conditional, cannot be made to the obligee without waiving the benefit of the condition.[
4] Hence, where a bond, perfect on its face, is delivered by the sole obligor, or by all of the obligors, to the obli-
gee, the delivery is absolute, and the condition void; however, where such a bond is delivered conditionally to a
third person who delivers it to the obligee, with or without notice of the condition, the delivery is ultra vires, and
the obligor is not bound.[5]
A condition that the bond shall not be binding on the obligors unless it is also signed by others is valid and
enforceable, if the obligee has notice, express or implied, thereof,[6] otherwise the condition is void.[7] The fact
that those who have not signed it are named as obligors in the bond is sufficient notice.[8] Where, however, a
bond complete on its face is delivered by the obligors to the obligee, the fact that it is signed by the obligors on
the faith of a promise to secure the signature of an additional coobligor whose name does not appear therein
does not affect the liability of the obligors who sign.[9] The fact that there are other scrolls to the bond to which
no names are signed is not sufficient to put the obligee on notice as to the authority of the obligor to deliver the
bond.[10]
A bond executed by several persons as obligors, on certain terms and conditions, and subsequently delivered
by part of the obligors, without the knowledge or consent of the others, on terms and conditions different from
those originally stipulated, is not obligatory on the latter.[11]
Parol evidence.
Where a bond is not perfect on its face, parol evidence is admissible to show the conditions, no matter by
whom delivered, the instrument itself affecting the obligee with notice of its incompleteness.[12]

CJS BONDS 21 Page 2
11 C.J.S. Bonds 21
[FN1] Va.White v. Commonwealth, 158 Va. 749, 164 S.E. 375 (1932).
[FN2] W.Va.Newlin v. Beard, 6 W. Va. 110, 1873 WL 2783 (1873).
[FN3] N.Y.Belloni v. Freeborn, 63 N.Y. 383, 1875 WL 10893 (1875).
W.Va.Newlin v. Beard, 6 W. Va. 110, 1873 WL 2783 (1873).
[FN4] U.S.Moss v. Riddle & Co., 9 U.S. 351, 3 L. Ed. 123, 1809 WL 1653 (1809).
Ind.Madison & I. Plank-Road Co. v. Stevens, 10 Ind. 1, 1857 WL 3784 (1857).
[FN5]
Good or bad faith of obligee immaterial
Va.Blair v. Security Bank of Richmond, 103 Va. 762, 50 S.E. 262 (1905).
[FN6] Ill. Trustees of Schools, Town 35, R. W., Will County, v. Scheick, 119 Ill. 579, 8 N.E. 189
(1886).
[FN7] IowaBenton County Sav. Bank of Norway v. Boddicker, 105 Iowa 548, 75 N.W. 632 (1898).
Condition will not avail surety where others not named in instrument
Ind.State ex rel. McCarty v. Pepper, 31 Ind. 76, 1869 WL 3289 (1869).
[FN8] Ark.State v. Wallis, 57 Ark. 64, 20 S.W. 811 (1892).
[FN9] Mo.Garvey v. Marks, 134 Mo. 1, 34 S.W. 1108 (1896), opinion adopted, 134 Mo. 1, 38 S.W.
79 (1896).
[FN10] Va.Nash v. Fugate, 73 Va. 595, 32 Gratt. 595, 1880 WL 6145 (1880).
[FN11] N.Y.Lovett v. Adams, 3 Wend. 380, 1829 WL 2460 (N.Y. Sup 1829).
[FN12] Va.Blair v. Security Bank of Richmond, 103 Va. 762, 50 S.E. 262 (1905).
CJS BONDS 21
END OF DOCUMENT

CJS BONDS 22 Page 1
11 C.J.S. Bonds 22

Bonds
Karl Oakes, J.D.

22. Acceptance

In order to make a bond a binding obligation, it must be accepted by the obligee. The question of acceptance
is one of intention as gathered from the obligee's language or conduct, or from both.
Every bond, in order that it may be a binding obligation, must not only be executed and delivered by the ob-
ligor, but must also be accepted by the obligee.[1] Statutory or official bonds made payable to the state cannot
become effective until they are accepted by those duly authorized to accept them.[2]
The question of acceptance is one of intention as gathered from the obligee's language or conduct or from
both,[3] and the legal effect of what he or she says and does cannot be altered or modified by an undisclosed in-
tention or secret understanding.[4] Acceptance need not be in writing.[5] Where the obligee receives the instru-
ment merely for the purpose of examination and inspection,[6] and returns it because of a defective acknowledg-
ment,[7] there is no acceptance. However, if together with other circumstances indicating an intention to accept,
the obligee receives and retains the bond or brings suit on it, acceptance may be presumed.[8]
Conditional acceptance.
If a bond is accepted conditionally on the day of its date, to become absolute on the happening of some
event, it will, on the occurrence of such event, be considered as delivered and accepted on the day dated.[9]
Repudiation.
Where a bond is once accepted by the obligee he or she cannot subsequently repudiate it so as to make it
void.[10] The fact, however, that a bond is rejected does not render a reexecution of it necessary in case of a
subsequent acceptance.[11]
[FN1] Mont.State v. American Bank & Trust Co., 75 Mont. 369, 243 P. 1093 (1926).
[FN2] Md.State v. Gaver, 115 Md. 250, 80 A. 891 (1911).
[FN3] Or.Dunlap v. Lewis, 64 Or. 482, 130 P. 973 (1913).

CJS BONDS 22 Page 2
11 C.J.S. Bonds 22
[FN4] Ky.National Building & Loan Ass'n v. Day, 23 Ky. L. Rptr. 599, 63 S.W. 590 (Ky. 1901).
[FN5] Mass. President, etc., of Amherst Bank v. Root, 43 Mass. 522, 2 Met. 522, 1841 WL 3401
(1841).
[FN6] Minn.Comer v. Baldwin, 16 Minn. 172, 16 Gil. 151, 1870 WL 2377 (1870).
[FN7] IowaWeber Co. v. Chicago, St. P., M. & O. Ry. Co., 92 Iowa 364, 60 N.W. 637 (1894).
[FN8] N.D.McIntosh v. Dakota Trust Co., 52 N.D. 752, 204 N.W. 818, 40 A.L.R. 1021 (1925).
[FN9] N.Y.Seymour & Bouck v. Van Slyck, 8 Wend. 403, 1832 WL 2800 (N.Y. Sup 1832), aff'd, 15
Wend. 19, 1835 WL 2662 (N.Y. 1835).
[FN10] Or.Dunlap v. Lewis, 64 Or. 482, 130 P. 973 (1913).
[FN11] N.H.Pequawket Bridge v. Mathes, 8 N.H. 139, 1835 WL 1068 (1835).
CJS BONDS 22
END OF DOCUMENT

CJS BONDS III E REF Page 1
11 C.J.S. Bonds III E Refs.

Bonds
Karl Oakes, J.D.

E. Consideration
Research References
A.L.R. Library
CJS BONDS III E REF
END OF DOCUMENT

CJS BONDS 23 Page 1
11 C.J.S. Bonds 23

Bonds
Karl Oakes, J.D.

E. Consideration
23. Generally

In the absence of a statute to the contrary, a seal on a bond imports a consideration, but, under statutes abol-
ishing or limiting the effect of seals, it is essential that the bond be based on a consideration.
Since, in the absence of a statute to the contrary, a seal imports a consideration, where a bond is under seal
it is not necessary, in order to make it obligatory, that a consideration appear.[1] Under some practice, this pre-
sumption is so conclusive that in an action at law want of consideration cannot be shown as a bar to the action,[2
] although a failure of consideration may be shown as a defense, but not a want thereof.[3] However, under some
statutes, a seal is only presumptive evidence of a consideration which may be rebutted.[4] Where the effect of
seals have been abolished by statute,[5] it is regarded as essential that the bond be based on a sufficient consid-
eration, otherwise the want of, or insufficiency of, consideration may be shown as a defense to an action on the
bond,[6] although, if the bond is a voluntary one, it may take effect as a gift, if such was the evident intention of
the parties.[7] Moreover, under some statutes, a bond executed pursuant to, and in substantial conformity with,
the provisions and requirements of the statute needs no consideration.[8]
Sufficiency of consideration.
What constitutes a sufficient consideration to render a bond valid is governed by the principles relating to
the consideration for a contract generally.[9] Where a bond is given to secure the performance of a contract, the
entering into such contract by the obligee is its consideration,[10] and, if the contract made is not binding on the
obligee, and he has done nothing of any legal validity or effect, the bond will fail.[11]
[FN1] Mass.Royal Bank of Liverpool v. Grand Junction R. & Depot Co., 100 Mass. 444, 1868 WL
5606 (1868).
N.Y.Knight v. Kitchin, 237 A.D. 506, 261 N.Y.S. 809 (4th Dep't 1933).
Pa.Brill v. Brill, 282 Pa. 276, 127 A. 840 (1925).

CJS BONDS 23 Page 2
11 C.J.S. Bonds 23
[FN2] Pa.Roper v. Scevcnik, 128 Pa. Super. 453, 194 A. 333 (1937).
[FN3] Pa.Gsell v. Helman, 108 Pa. Super. 258, 164 A. 853 (1933).
[FN4] Okla.Liverpool & London & Globe Ins. Co. v. Parker, 1918 OK 674, 71 Okla. 189, 176 P. 393
(1918).
Tex.Fife v. Indemnity Ins. Co. of North America, 283 S.W. 645 (Tex. Civ. App. El Paso 1926).
[FN5] Neb.State v. Paxton, 65 Neb. 110, 90 N.W. 983 (1902).
[FN6] Cal.Town of Mill Valley v. National Surety Co., 41 Cal. App. 540, 182 P. 459 (1st Dist. 1919)
.
Consideration equivalent to seal
U.S.U.S. ex rel. Wilhelm v. Chain, 300 U.S. 31, 57 S. Ct. 394, 81 L. Ed. 487 (1937).
[FN7] Pa.Meek v. Frantz, 171 Pa. 632, 33 A. 413 (1895).
[FN8] Ariz.Ackel v. Mason Dry Goods Co., 32 Ariz. 33, 255 P. 488 (1927).
[FN9]
Bond and mortgage executed in settlement of foreclosure actions.
N.Y.Knight v. Kitchin, 237 A.D. 506, 261 N.Y.S. 809 (4th Dep't 1933).
Execution of bond inducing another to take nonsuit in damage action
N.C.Myers v. Barnhardt, 202 N.C. 49, 161 S.E. 715 (1932).
[FN10] Kan.Metz v. Clay, 101 Kan. 45, 165 P. 809 (1917).
[FN11] Mo.Town of Kirkwood v. Meramec Highlands Co., 94 Mo. App. 637, 68 S.W. 761 (1902).
Neb.Keith County v. Ogalalla Power & Irr. Co., 64 Neb. 35, 89 N.W. 375 (1902).
CJS BONDS 23
END OF DOCUMENT

CJS BONDS 24 Page 1
11 C.J.S. Bonds 24

Bonds
Karl Oakes, J.D.

E. Consideration
24. Failure of consideration

In equity or under some statutes, a failure of consideration may constitute a defense to a bond.
In equity, or under statutes, in case of a failure of consideration, as where it proves to be a mere nullity, or
where, although good at the time of entering into the agreement, it wholly fails before either party has received
any benefit or sustained any loss or detriment thereunder, the agreement will not be binding.[1] This is so unless
the failure of consideration is due to an avoidable casualty which the parties are presumed to have contemplated
at the inception of the contract.[2]
Failure of consideration, due to an act of the state, is no defense where such act is unconstitutional as im-
pairing the obligation of contracts.[3] The repeal of a statute under which a bond is executed does not have the
effect of working a failure of consideration.[4]
[FN1] Pa.Roper v. Scevcnik, 128 Pa. Super. 453, 194 A. 333 (1937).
Tenn.McConnell v. Moore, 157 Tenn. 575, 11 S.W.2d 682 (1928).
[FN2] W.Va.Matthews v. Dunbar, 3 W. Va. 138, 1869 WL 1893 (1869).
[FN3] W.Va.Matthews v. Dunbar, 3 W. Va. 138, 1869 WL 1893 (1869).
[FN4] Miss.Tucker v. Stokes, 11 Miss. 124, 3 S. & M. 124, 1844 WL 3267 (1844).
CJS BONDS 24
END OF DOCUMENT

CJS BONDS III F REF Page 1
11 C.J.S. Bonds III F Refs.

Bonds
Karl Oakes, J.D.

F. Validity; Effect of Invalidity
Research References
A.L.R. Library
West's A.L.R. Digest, Bonds 12 to 16 , 21 , 31 , 37 , 42 to 44
CJS BONDS III F REF
END OF DOCUMENT

CJS BONDS 25 Page 1
11 C.J.S. Bonds 25

Bonds
Karl Oakes, J.D.

1. Validity of Bond
a. In General
25. Legality

If the consideration for a bond or a condition thereof is illegal, the bond will be void unless such illegal mat-
ter is separable from other matter which is good and sufficient. The illegality of particular provisions of a bond,
if vital to the bond, will cause its voidance.
It is a general proposition that if the consideration is illegal, the bond will be void.[1] However, if the con-
sideration is such that it is capable of division and the illegal part can be eliminated from the rest, leaving an en-
tire and sufficient consideration, the bond may, nevertheless, be enforced.[2]
Particular provisions of a bond, if illegal, may cause the voidance of the entire bond,[3] unless it is shown
that the voidance of such provisions does not necessitate the voidance of the entire instrument.[4]
Except as otherwise provided by statute,[5] a provision in a bond for the payment of attorney's fees is valid.[
6]
[FN1] Mass.Page v. Trufant, 2 Mass. 159, 1806 WL 781 (1806).
[FN2] N.Y.Jarvis & Lobdell v. Peck, 10 Paige Ch. 118, 4 N.Y. Ch. Ann. 910, 1843 WL 4791 (N.Y.
Ch. 1843).
[FN3] Ark.McSpadden v. Leonard, 159 Ark. 193, 251 S.W. 694 (1923).
Bond given in advance of performance not illegal
N.J.Huck-Gerhardt Co. v. Parreca, 9 N.J. Misc. 563, 154 A. 870 (Sup. Ct. 1931).

CJS BONDS 25 Page 2
11 C.J.S. Bonds 25
[FN4] Mich.White Sewing Mach. Co. v. Dakin, 86 Mich. 581, 49 N.W. 583 (1891).
[FN5] Kan.Singer Mfg. Co. v. Armstrong, 7 Kan. App. 314, 54 P. 571 (1898).
[FN6] Ind.Snider v. Greer Wilkinson Lumber Co., 51 Ind. App. 348, 96 N.E. 960 (1912).
CJS BONDS 25
END OF DOCUMENT

CJS BONDS 26 Page 1
11 C.J.S. Bonds 26

Bonds
Karl Oakes, J.D.

1. Validity of Bond
a. In General
26. Technical defects and clerical errors

If the intention of the parties is clear, a mere technical defect or clerical error will not invalidate the bond.
Where the lawful intention of the parties can be ascertained from the terms of the bond, it will not be inval-
idated by a mere technical defect or clerical error.[1] Under some statutes it is expressly provided that a defect
of form, of substance, of recital, or of condition shall not invalidate a bond.[2] Accordingly, a bond will not be
vitiated by the omission of a necessary word, where such word may be clearly understood from the context.[3]
A mistake in the name of a party to a bond will not avoid it, where it can be shown who was the party inten-
ded,[4] and in such case the bond will not be vitiated by the erasure of such name and the insertion of the proper
name.[5] However, it has been held that this rule does not apply so as to render one liable as obligor on a bond
whose name through oversight has not been signed thereto.[6]
[FN1] Tex.Collins v. Chastain, 36 S.W. 503 (Tex. Civ. App. 1896).
[FN2] Ind.Boreman v. Jung Brewing Co., 23 Ind. App. 399, 55 N.E. 495 (1899).
Bond given in satisfaction of legal suretyship
La.Shepard v. Mayer, 718 So. 2d 539 (La. Ct. App. 4th Cir. 1998), writ denied, 735 So. 2d 639 (La.
1999).
[FN3] Mass.De Soto County v. Dickson, 34 Miss. 150, 1857 WL 4127 (1857).
[FN4] U.S.Dolton v. Cain, 81 U.S. 472, 20 L. Ed. 830, 1871 WL 14807 (1871).

CJS BONDS 26 Page 2
11 C.J.S. Bonds 26
[FN5] Cal.Turner v. Billagram, 2 Cal. 520, 1852 WL 612 (1852).
[FN6] Ind.Boreman v. Jung Brewing Co., 23 Ind. App. 399, 55 N.E. 495 (1899).
CJS BONDS 26
END OF DOCUMENT

CJS BONDS 27 Page 1
11 C.J.S. Bonds 27

Bonds
Karl Oakes, J.D.

1. Validity of Bond
b. Statutory Bonds
27. Generally

A statutory bond should, with respect to its conditions and execution, comply with the requirements of the
act under which it is given. Generally, a substantial compliance with the statutory requirements is sufficient.
A bond to be good as a statutory bond should, in general, comply, with respect to its conditions and execu-
tion, with the requirements of the act under which it is given, and its noncompliance with a material requirement
may render it invalid as a statutory bond.[1] If a bond is in the precise language of the statute, it is valid, even
though a part of it cannot be enforced.[2] The omission of a material condition in a bond vitiates it where the
statute in express terms or by necessary implication so provides,[3] but if, in the absence of such a provision, an
omission of some prescribed condition does not render the bond void, it is valid as a statutory bond so far as the
inserted conditions extend.[4]
It has been held that the omitted conditions may be supplied,[5] and that the bond is merely voidable at the
election of the party for whose benefit it was given.[6] However, an obligor will not be permitted to take advant-
age of an omission of a condition where such omission is beneficial to him or her.[7]
Substantial compliance with statute.

Except where the statute, either expressly or implicitly, declares all bonds void which do not strictly comply
with the requirements therein prescribed,[8] a bond need not be in the exact words of the statute, so that the fact
that it slightly varies from the form prescribed will not invalidate it, provided it includes substantially all that the
statute requires, that is, such obligations as are imposed by the statute, and allows every defense given by law.[9
] Thus, a bond is not invalid where it is more specific than the statute requires, but imposes no additional obliga-
tion.[10]
A bond intended to be given pursuant to the requirement of a statute is not invalid because of a variance
from the statutory requirement as to parties,[11] and as to execution,[12] unless the variance is material,[13] and
the provision is not merely directory,[14] and unless the sole consideration for the bond is the statutory require-
ment.[15]

CJS BONDS 27 Page 2
11 C.J.S. Bonds 27
A variance in the time of execution of a bond from that prescribed by statute, whether before or after, is re-
garded as immaterial,[16] unless by the provisions of the statute the prescribed time of execution is essential to
the validity of the bond.[17] A provision requiring the official approval of a bond is merely directory, and hence
an irregularity or entire failure in this respect does not affect the validity of the bond.[18]
[FN1] Ala.Consolidated Indemnity & Insurance Co. v. Texas Co., 224 Ala. 349, 140 So. 566 (1932).
[FN2] N.Y.People v. Mitchell, 6 N.Y. Super. Ct. 466 (1851).
[FN3] U.S.U.S. v. Gordon, 11 U.S. 287, 3 L. Ed. 347, 1813 WL 1415 (1813).
[FN4] W.Va.Chambers v. Cline, 60 W. Va. 588, 55 S.E. 999 (1906).
[FN5] La.Slocomb v. Robert, 16 La. 173, 1840 WL 1333 (1840).
Technical defects and clerical errors, see 26.
[FN6] N.Y.Shaw v. Tobias, 3 N.Y. 188, 1849 WL 5375 (1849).
[FN7] Minn.Waterous Engine Works Co. v. Village of Clinton, 110 Minn. 267, 125 N.W. 269 (1910)
.
[FN8] S.C.Plumley v. Stewart, 165 S.C. 316, 163 S.E. 777 (1932).
Tex.American Surety Co. of New York v. Tarbutton, 248 S.W. 435 (Tex. Civ. App. Texarkana 1923)
, writ refused, (May 9, 1923).
[FN9] La.Sievers v. Samuel, 172 La. 1005, 136 So. 33 (1931).
S.C.Pickens County v. Love, 171 S.C. 235, 171 S.E. 799 (1933).
[FN11] Cal.Mazuran v. Finn, 53 Cal. App. 656, 200 P. 769 (1st Dist. 1921).
[FN12] Kan.Mann v. Burt, 35 Kan. 10, 10 P. 95 (1886).
[FN14] Ga.Mayo v. Renfroe, 66 Ga. 408, 1881 WL 3553 (1881).
[FN15] Colo.Edwards v. Pomeroy, 8 Colo. 254, 6 P. 829 (1885).

CJS BONDS 27 Page 3
11 C.J.S. Bonds 27
Ky.Evans v. Cleaver, 16 Ky. L. Rptr. 499, 29 S.W. 29 (Ky. 1895).
[FN16] Miss.State v. Cooper, 53 Miss. 615, 1876 WL 7407 (1876).
[FN17] Ky.Commonwealth v. Yarbrough, 84 Ky. 496, 8 Ky. L. Rptr. 483, 2 S.W. 68 (1886).
[FN18] Fla.Carroll v. Carroll, 127 Fla. 226, 172 So. 916 (1937).
CJS BONDS 27
END OF DOCUMENT

CJS BONDS 28 Page 1
11 C.J.S. Bonds 28

Bonds
Karl Oakes, J.D.

1. Validity of Bond
b. Statutory Bonds
28. Effect of amendment of repeal of statute under which bond given

The validity and force of a bond will not be affected by the amendment or repeal of the statute under which
it was given, since a common-law action may nevertheless be maintained on the bond. If consideration for a
bond exists independent of a statute, the unconstitutionality of the statute will not avoid the bond.
Although a statute under which a bond is executed may subsequently be amended or repealed, the validity
and force of the bond will not be affected thereby, for although it may be insufficient as a statutory bond by the
subsequent act, a common-law action may, nevertheless, be maintained thereon.[1] On the other hand, a bond
void by the act under which it is executed will not be validated by a subsequent general act.[2]
Generally, a bond given to comply with a statute is not binding if the statute is void.[3] A bond executed in
pursuance of a statute is not necessarily void because the statute is afterward pronounced unconstitutional.[4]
The test of the enforceability of such a bond is whether a consideration exists therefor independent of the stat-
ute.[5] If the bond is dependent for a consideration entirely on the validity of the statute, it becomes invalidated
when the statute is annulled,[6] and is not valid as a common-law bond.[7] If, however, the bond rests on a con-
sideration of its own it may be enforced as a common-law bond, if otherwise unobjectionable.[8]
[FN1] Wis.Lewis v. Stout, 22 Wis. 234, 1867 WL 3293 (1867).
[FN2] Wis.Morton v. Rutherford, 18 Wis. 298, 1864 WL 2304 (1864).
[FN3] Cal. Bookasta v. Hartford Acc. & Indem. Co., 46 Cal. App. 3d 237, 120 Cal. Rptr. 229 (2d
Dist. 1975).
[FN4] Tex.Southern Surety Co. v. Nalle & Co., 242 S.W. 197 (Tex. Comm'n App. 1922).
W.Va.Love v. McCoy, 81 W. Va. 478, 94 S.E. 954 (1918).

CJS BONDS 28 Page 2
11 C.J.S. Bonds 28
[FN5] W.Va.Love v. McCoy, 81 W. Va. 478, 94 S.E. 954 (1918).
[FN6] Cal.Roystone Co. v. Darling, 171 Cal. 526, 154 P. 15 (1915).
W.Va.Love v. McCoy, 81 W. Va. 478, 94 S.E. 954 (1918).
CJS BONDS 28
END OF DOCUMENT

CJS BONDS 29 Page 1
11 C.J.S. Bonds 29

Bonds
Karl Oakes, J.D.

1. Validity of Bond
b. Statutory Bonds
29. Bonds exacted under color of official authority

A bond exacted by a public officer under color of authority, when in reality no such authorization exists, is
void.
A bond exacted by a judge or other public officer under the pretended authority of his or her office, and
which he or she is not legally authorized to require, is void.[1] The same is true of bonds executed for the per-
formance of conditions not authorized by law.[2] On the other hand, mere irregularities in failing to comply with
statutory requirements in bonds taken by officers will not invalidate them,[3] as where a bond regular in other
respects is taken unsealed,[4] or for a larger amount than required.[5]
Separable conditions.
Where a portion of a bond taken under color of authority merely exceeds the statutory requirement, and such
excess is separable from required conditions, so that it may be rejected without destroying the whole, the bond
will be void only to that extent.[6]
[FN2] Conn.Town of Stratford v. Fidelity & Cas. Co., 106 Conn. 34, 137 A. 13 (1927).
[FN3] N.Y.Decker v. Judson, 16 N.Y. 439, 1857 WL 7127 (1857).
[FN4] N.Y.Kelly v. McCormick, 28 N.Y. 318, 1863 WL 4332 (1863).
[FN5] N.Y.Adee v. Adee, 16 Hun 46 (N.Y. Gen. Term 1878).
[FN6] D.C.District of Columbia v. Waggaman, 15 D.C. 328, 4 Mackey 328, 1885 WL 18345 (D.C.
1885).

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Bonds
Karl Oakes, J.D.

1. Validity of Bond
c. Voluntary Bonds
30. Generally

A voluntary bond, executed by competent parties for a valid consideration and not repugnant to the law, is
enforceable.
A bond, whether required by statute or order of court or not, is good at common law if it is entered into vol-
untarily by competent parties for a valid consideration, and is not repugnant to the letter or policy of the law.[1]
Such a bond, other than an official bond, is enforceable according to its conditions, although they are more
onerous than would have been required if a statutory bond had been given for the same purpose.[2] This rule has
been applied to bonds given to the United States.[3]
[FN1] Mich.Pasternacki v. O'Reilly, 217 Mich. 56, 185 N.W. 739 (1921).
Or.Clatsop County v. Feldschau, 101 Or. 369, 199 P. 953, 18 A.L.R. 1221 (1921).
S.D.Lowe v. Southern Surety Co., 55 S.D. 623, 227 N.W. 78 (1929).
[FN2] Minn.Carlson v. American Fidelity Co., 149 Minn. 114, 182 N.W. 985 (1921).
Or.Clatsop County v. Feldschau, 101 Or. 369, 199 P. 953, 18 A.L.R. 1221 (1921).
[FN3] Or.Clatsop County v. Feldschau, 101 Or. 369, 199 P. 953, 18 A.L.R. 1221 (1921).
CJS BONDS 30
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1. Validity of Bond
c. Voluntary Bonds
31. Insufficient statutory bond as voluntary bond

A voluntary bond, given on a valid consideration, which does not violate public policy or contravene any
statute, may be good as a common-law bond, although insufficient as a statutory bond.
A statutory bond may be good as a common-law obligation, although insufficient under the governing stat-
ute because of noncompliance with its requirements, provided it is entered into voluntarily and on a valid con-
sideration and does not violate public policy or contravene any statute.[1] However, this rule cannot be extended
to cases in which to hold the parties liable, as on a bond at common law, would be to charge them with liabilities
and obligations greater than, or different from, those which they assumed in the instrument executed by them.[2]
Moreover, in order to uphold a bond as a valid common-law obligation on which a recovery may be had as such,
it must be done independently of the statute by the authority of which it was intended to be executed.[3]
The mere inclusion in a statutory bond of other or nonstatutory conditions does not have the effect of con-
verting it into a common-law obligation.[4]
If a bond is not good as a statutory bond, but is good as a common-law bond, it must be declared on as a
common-law bond,[5] and it creates no liability beyond its own terms, notwithstanding the statutory provision in
compliance with which it was intended to be given, unless there is a special remedial statute operating to effect
that result.[6] Such a bond cannot be so enforced where it has never been delivered to, or ratified by, the obli-
gee,[7] or where there has not been compliance with the condition on which it was executed.[8] Moreover, a suit
cannot be maintained on it while a judgment quashing it remains unreversed.[9]
Appearance bonds.
The same rules as to bonds which may be enforced as common-law obligations between individuals do not
apply to bonds executed to an officer of the state for the appearance of persons charged with criminal offenses,
for they are purely statutory, and if not taken as required by the statute cannot be enforced as common-law
bonds.[10]

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11 C.J.S. Bonds 31
[FN1] Ala.Consolidated Indemnity & Insurance Co. v. Texas Co., 224 Ala. 349, 140 So. 566 (1932).
Mass.Castaline v. Swardlick, 264 Mass. 481, 163 N.E. 62 (1928).
Or.Fitzgerald v. Neal, 113 Or. 103, 231 P. 645 (1924).
[FN2] IowaKuhl v. Chamberlain, 140 Iowa 546, 118 N.W. 776 (1908).
[FN3] Tex.Broussard v. Hinds, 46 Tex. Civ. App. 134, 101 S.W. 855 (1907).
[FN4] IowaSchisel v. Marvill, 198 Iowa 725, 197 N.W. 662 (1924).
Effect of inclusion of nonstatutory conditions, generally, see 41.
[FN5] Mass.Farr v. Rouillard, 172 Mass. 303, 52 N.E. 443 (1899).
[FN6] Kan.General Securities Co. v. Hindes, 119 Kan. 226, 237 P. 659 (1925).
Wyo.Rothwell v. Knight, 37 Wyo. 11, 258 P. 576 (1927).
[FN7] IowaKuhl v. Chamberlain, 140 Iowa 546, 118 N.W. 776 (1908).
[FN8] Colo.Edwards v. Pomeroy, 8 Colo. 254, 6 P. 829 (1885).
[FN9] Ky.Cooper v. Hatter, 24 Ky. 357, 1 J.J. Marsh. 357, 1829 WL 1218 (1829).
[FN10] Cal. City and County of San Francisco v. Hartnett, 1 Cal. App. 652, 82 P. 1064 (1st Dist.
1905).
Mo.State ex rel. Owens v. Fraser, 165 Mo. 242, 65 S.W. 569 (1901).
Neb.Dickinson v. State, 20 Neb. 72, 29 N.W. 184 (1886).
CJS BONDS 31
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Karl Oakes, J.D.

2. Validity of Assent
32. Generally

Mutual assent is essential to the validity of a bond.
Mutual assent, which is the assent of both parties to the same thing at the same time, is essential to a bond.[
1]
A claim that the bond was executed under a mistaken impression of its legal effect made on the obligor's
mind by the obligee is no defense.[2]
In an action by an assignee on a collateral bond given as additional security for payment of a corporate
bond, secured by a mortgage on realty, defendant's claim that it did not intend to execute the bond and that the
bond was executed by mistake has been held not a defense.[3]
[FN1] Mont.State v. American Bank & Trust Co., 75 Mont. 369, 243 P. 1093 (1926).
[FN2] Ind.Miller v. Elliott, 1 Ind. 484, 1849 WL 3096 (1849).
[FN3] N.Y.Blaustein v. Schnabel, 270 A.D. 945, 62 N.Y.S.2d 366 (2d Dep't 1946).
CJS BONDS 32
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33. Fraud or misrepresentation

Generally, a bond is rendered invalid by fraud in its execution or issue in which the obligee participates.
As a general rule, fraud in the execution or issue of a bond renders it invalid.[1] Accordingly, fraud in the
execution of a bond, consisting of a misrepresentation or concealment of a matter material to the contract known
to the fraudulent party, and not equally within the knowledge of the party imposed on, whereby a different in-
strument is executed from that which the obligor intended,[2] as where the instrument is misread to him or her,
or another is substituted without his or her knowledge,[3] is ground for avoiding the bond. According to some
authorities fraud in the execution of the bond is the only defense of fraud which may be pleaded in an action at
law.[4]
Where, however, the obligor, knowing what he or she signs, is induced to sign the bond by fraudulent rep-
resentations as to collateral matters, the obligor cannot avoid it on that ground in an action at law, his only rem-
edy being in equity,[5] or by virtue of statute, where it is regulated by statute.[6] Moreover. even under the stat-
utes the defense of fraud cannot be set up in an action at law if the fraud is such as calls only for equitable re-
lief.[7]
Obligee's participation in fraud.

In order to avoid a bond on the ground of fraud in its execution it should appear that the obligee participated
in or had notice thereof.[8] Hence, the fraud of a coobligor[9] or of a third person[10] in inducing a person to
execute a bond will not relieve such person from liability thereon unless the obligee was in privity with the
wrongdoer or had notice of the fraud before accepting the bond.[11]
Obligor's knowledge of, or participation in, fraud.

A bond cannot be impeached by an obligor who has knowledge of the fraud before he or she executes the
bond,[12] or where the falsity of such statements could be ascertained at the time the bond is given,[13] or
where the fraudulent act is that of the obligor.[14]

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[FN1] N.C.Pittsburgh Plate Glass Co. v. Fidelity & Deposit Co. of Maryland, 193 N.C. 769, 138 S.E.
143 (1927).
[FN2] Pa.Fulton v. Hood, 34 Pa. 365, 1859 WL 8842 (1859).
[FN3] Pa.Stocker v. Schneider, 228 Pa. 149, 77 A. 437 (1910).
[FN4] Ill.Gage v. Lewis, 68 Ill. 604, 1873 WL 8401 (1873).
[FN5] R.I.Phillips v. Potter, 7 R.I. 289, 1862 WL 1340 (1862).
[FN6] Va.Tyson v. Williamson, 96 Va. 636, 32 S.E. 42 (1899).
[FN7] Va.Tyson v. Williamson, 96 Va. 636, 32 S.E. 42 (1899).
[FN8] Ind.Carr v. Moore, 2 Ind. 602, 1851 WL 3034 (1851).
[FN9] R.I.Andrews v. Tallman, 47 R.I. 111, 131 A. 50 (1925).
[FN10] N.J.Christian Feigenspan v. Wilson, 68 N.J.L. 83, 52 A. 233 (N.J. Sup. Ct. 1902).
[FN11] N.C. Pittsburgh Plate Glass Co. v. Fidelity & Deposit Co. of Maryland, 193 N.C. 769, 138
S.E. 143 (1927).
[FN12] Ky.Higgs v. Smith, 10 Ky. 338, 3 UCCRs2 338, 1821 WL 1084 (1821) (Ky.).
[FN13] Ohio Souhrada v. David, 15 Ohio N.P. (n.s.) 257, 29 Ohio Dec. 496, 1914 WL 1293 (C.P.
1914).
[FN14] U.S.U.S. v. Swann, 1 D.C. 148, 27 F. Cas. 1379, No. 16425 (C.C.D. D.C. 1803).
Pa.Evans v. Dravo, 24 Pa. 62, 1854 WL 6412 (1854).
CJS BONDS 33
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Karl Oakes, J.D.

34. Duress

A bond obtained under duress of person or property is voidable.
Bonds executed under duress are generally voidable.[1] If, however, all the parties to the bond do not ex-
ecute it under duress, the bond will be void only as to those who so execute it,[2] except in cases of extortion un-
der color of office.[3] To avoid a bond for duress under compulsion of a void statute, it must be shown that it
was executed solely on the compulsion of such statute.[4]
As a general rule, such unlawful conduct as is calculated to arouse the fears of a person of ordinary firm-
ness, by reason of which a bond is executed, is duress and ground of avoidance.[5] The exaction of greater se-
curity than that authorized by law, as a condition of regaining liberty from a lawful imprisonment, is duress
which will avoid the bond as to such excess.[6] Where a person is unlawfully restrained of his or her liberty and
executes a bond to the person causing such restraint because thereof, he or she is acting under duress and the
bond is voidable.[7] A bond will also be voidable for duress where executed under threats of unlawful restraint
or imprisonment,[8] but not where such threats are of lawful imprisonment[9] or of legal prosecution.[10] The
fact that a person is unlawfully detained in custody does not avoid a bond voluntarily and freely given by him or
her,[11] and a bond required of a public officer as a condition to the retention of his or her position is not void
for duress.[12]
Duress of property.
It is generally held that a bond is void for duress where given to secure the release of property which has
been illegally levied on.[13] This doctrine is not applicable to a bond taken by an officer under a statute author-
izing such a bond in valid attachment proceedings, where he or she holds property by virtue of a legal process,
although the attachment was wrongfully sued out.[14] A bond given to secure a valid lien entitling a salvor of
goods to the possession thereof, and on the faith of which he parts with the possession, is not void for duress.[15
]

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11 C.J.S. Bonds 34
[FN2] Ind.Tucker v. State, 72 Ind. 242, 1880 WL 6325 (1880).
[FN3] N.Y.Thompson v. Lockwood, 15 Johns. 256, 1818 WL 1827 (N.Y. Sup 1818).
[FN4] Tex. U.S. Fidelity & Guaranty Co. v. Henderson County, 276 S.W. 203 (Tex. Comm'n App.
1925).
[FN5] Me.Inhabitants of Whitefield v. Longfellow, 13 Me. 146, 1836 WL 522 (1836).
S.C.Collins v. Westbury, 2 S.C.L. 211, 2 Bay 211, 1799 WL 257 (Const. Ct. App. 1799).
[FN6] Pa.Power v. Graydon, 53 Pa. 198, 1866 WL 6310 (1866).
[FN7] Me.Bowker v. Lowell, 49 Me. 429, 1861 WL 1750 (1861).
[FN8] U.S.Bell v. Nimmo, 3 F. Cas. 110, No. 1258 (C.C.D. Ind. 1850).
Me.Eddy v. Herrin, 17 Me. 338, 1840 WL 934 (1840).
[FN9] Me.Eddy v. Herrin, 17 Me. 338, 1840 WL 934 (1840).
OhioMoore v. Adams, 8 Ohio 372, 1838 WL 12 (1838).
[FN10] Pa.Hamilton v. Lockhart, 158 Pa. 452, 27 A. 1077 (1893).
[FN11] Me.Inhabitants of Whitefield v. Longfellow, 13 Me. 146, 1836 WL 522 (1836).
Pa.Pflaum v. McClintock, 130 Pa. 369, 18 A. 734 (1889).
[FN12] Ariz.Smith v. U. S., 5 Ariz. 56, 45 P. 341 (1896), aff'd, 170 U.S. 372, 18 S. Ct. 626, 42 L. Ed.
1074 (1898).
Miss.State v. Harney, 57 Miss. 863, 1880 WL 6879 (1880).
[FN13] Ky.Perry v. Hensley, 53 Ky. 474, 14 B. Mon. 474, 1854 WL 3783 (1854).
S.C.Collins v. Westbury, 2 S.C.L. 211, 2 Bay 211, 1799 WL 257 (Const. Ct. App. 1799).
[FN14] Tex.Shirley v. Byrnes, 34 Tex. 625, 1871 WL 7456 (1871).
[FN15] N.Y.Jones v. Bridge, 32 N.Y. Super. Ct. 431 (1870).
CJS BONDS 34
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Karl Oakes, J.D.

3. Effect of Invalidity
35. Generally

Unless there has been a waiver of, or estoppel to set up, defects, a bond wholly invalid must ordinarily be
considered inoperative.
A bond wholly invalid must ordinarily be considered as inoperative.[1] A defective or invalid bond may be
enforced where the defects have been waived by the parties, as by signing the bond,[2] or where the parties
thereto have ratified the contract.[3] So, also, the fact that the bond is void does not prevent a recovery on the
contract, express or implied, which was made in reliance on the bond.[4]
Under statute, even though a bond may be fatally defective, it is permissible to remedy the defect by the ex-
ecution of a new bond.[5] While under statute the party who furnishes a bond may correct any defects therein by
furnishing a new or supplemental bond at any time if no rule to test the original bond has been filed, this is not
so once the court has rendered judgment in the case.[6]
In equity a bond void at law may be enforced as an agreement subject to the effect of the equitable circum-
stances under which it was made.[7]
[FN1] Tex.Woods v. State, 51 Tex. Crim. 595, 103 S.W. 895 (1907).
[FN2] La.State v. Winfree's Securities, 12 La. Ann. 643, 1857 WL 4738 (1857) (La.).
[FN3] Miss.Cohea v. State, 34 Miss. 179, 1857 WL 2693 (1857).
[FN4] Cal.Martin v. McCabe, 21 Cal. App. 658, 132 P. 606 (3d Dist. 1913).
[FN5] Ky.Alderson v. Trent, 79 Ky. 259, 2 Ky. L. Rptr. 248, 1881 WL 8228 (1881).

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11 C.J.S. Bonds 35
[FN6] La. Quickick, Inc. v. Quickick Intern., 341 So. 2d 1313 (La. Ct. App. 1st Cir. 1976), writ
denied, 343 So. 2d 1076 (La. 1977).
[FN7] Ind.State ex rel. Redkey v. Rowles, 177 Ind. 682, 98 N.E. 722 (1912).
CJS BONDS 35
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Karl Oakes, J.D.

3. Effect of Invalidity
36. Partial invalidity

A bond, although partially invalid, will be sustained as to its valid portions, if separable, and the other parts
will be voided.
Where the conditions or obligations of a bond consist of several different parts, and those which are not sus-
tainable are severable from those which are, the bond, although void as to the former, will be good as to the lat-
ter,[1] although the contrary has been held where the bond was executed for a single indivisible consideration.[2
] This rule applies in the case of statutory bonds which conform in part only to the requirements of the statute,
unless it is expressly declared by such enactment that bonds shall be void which are not in conformity there-
with,[3] in which case the entire bond will be void.[4]
If the good and the bad are so blended and interwoven that it is impossible to separate them, the bond will
be void in its entirety.[5] A bond may be valid as to part of the obligors and void as to the rest.[6]
[FN1] Conn.Robertson & Govanne Contracting Co. v. Aetna Acc. & Liability Co., 91 Conn. 129, 99
A. 557 (1916).
[FN2] N.C.Lindsay v. Smith, 78 N.C. 328, 1878 WL 2339 (1878).
[FN3] Conn.Robertson & Govanne Contracting Co. v. Aetna Acc. & Liability Co., 91 Conn. 129, 99
A. 557 (1916).
[FN4] N.Y.Mackie v. Cairns, 5 Cow. 547, 1825 WL 1865 (N.Y. 1825).
[FN5] U.S.U.S. v. Brown, D.C.Pa., 5 McLean 23, 24 F.Cas. 1313, 2 Ohio F.Dec. 663, No. 14,691.
[FN6] Ill.Burger v. Belsley, 45 Ill. 72, 1867 WL 5222 (1867).

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11 C.J.S. Bonds 36
Mass.Dickey v. Sleeper, 13 Mass. 244, 1816 WL 1038 (1816).
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Bonds
Karl Oakes, J.D.
IV. Construction and Operation
Research References
A.L.R. Library
West's A.L.R. Digest, Bonds 48 , 50 , 66 , 67 , 105
West's A.L.R. Digest, Mortgages 105
CJS BONDS IV REF
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Bonds
Karl Oakes, J.D.

A. Rules of Construction
Research References
A.L.R. Library
West's A.L.R. Digest, Bonds 48 , 50 , 66 , 67 , 105
West's A.L.R. Digest, Mortgages 105
CJS BONDS IV A REF
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Karl Oakes, J.D.

37. Generally

A bond, like other contracts, should be construed according to the fair import of the language used therein.
A bond is interpreted using general principles of contract construction and performance.[1] Like other con-
tracts, a bond is construed according to the fair import of the language used.[2] Unequivocal words in a bond
must be given their plain and ordinary meaning,[3] and cases interpreting past bond agreements must be con-
sidered for they almost certainly influenced the language chosen by the bonding company.[4]
Where there is no ambiguity in a bond, there is no room for construction by the court.[5]
1125 (2007).
[FN2] Fla.Florida School-Book Depository v. Liddon, 114 Fla. 149, 153 So. 902 (1934).
Minn.Ruthton Co-op. Creamery Co. v. Ruthton State Bank, 173 Minn. 255, 217 N.W. 133 (1927).
Pa.Fleck-Atlantic Co. v. Indemnity Ins. Co. of North America, 326 Pa. 15, 191 A. 51 (1937).
[FN3] U.S. Baltimore Bank & Trust Co. v. U. S. Fidelity & Guaranty Co., 436 F.2d 743 (8th Cir.
1971).
[FN4] U.S.Beatrice Foods Co. v. New England Printing and Lithographing Co., 930 F.2d 1572 (Fed.
Cir. 1991).
[FN5] Minn.Whitehill v. Seaway Port Authority of Duluth, Minn., 349 N.W.2d 313 (Minn. Ct. App.
1984).
Tex.Colonial American Cas. and Sur. Co. v. Scherer, 214 S.W.3d 725 (Tex. App. Austin 2007).

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38. Strict or liberal construction

Generally, bonds should be strictly construed against obligors.
The language of a bond contract is strictly construed in accordance with the terms contained therein.[1]
The obligatory part of a bond should be construed most strongly against those who undertake or enter into
the obligation, that is, the obligors.[2] The obligors should not be permitted to escape liability because of the use
of equivocal expressions.[3]
In construing the covenants of a voluntary common-law bond not given in conformity with the governing
statute, the intention of such statute becomes immaterial and the liability of the obligor will not be extended bey-
ond the precise terms of the undertaking which is to be strictly construed.[4]
[FN1] Nev.All Star Bonding v. State, 119 Nev. 47, 62 P.3d 1124 (2003).
[FN2] Ala.Loeb v. City of Montgomery, 7 Ala. App. 325, 61 So. 642 (1913).
N.C.Bennehan v. Webb, 28 N.C. 57, 6 Ired. 57, 1845 WL 1076 (1845).
Pa.Com. v. Friedman, 121 Pa. Super. 591, 184 A. 672 (1936).
[FN3] Ill.City Trust, Safe Deposit & Sur. Co. of Philadelphia v. Lee, 204 Ill. 69, 68 N.E. 485 (1903).
[FN4] Va.Claytor v. Anthony, 56 Va. 518, 15 Gratt. 518, 1860 WL 4026 (1860).
CJS BONDS 38

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39. Strict or liberal constructionStatutory bonds

Statutory bonds should be construed to effect the statutory purpose.
A statutory bond will be construed in the light of the purpose for which it is required as expressed in the
statute.[1] Accordingly, in view of the fact that the public has an interest in official and other statutory bonds,[2]
such bonds should be liberally construed to effect the purpose for which they were given.[3] Bonds required by
statute, however, are to be strictly construed,[4] and are not to be extended by implication beyond the clearly ex-
pressed intent of the statute.[5]
[FN1] Fla.Tingley v. Brown, 380 So. 2d 1289 (Fla. 1980).
Neb.Way v. Department of Motor Vehicles of State of Neb., 217 Neb. 641, 351 N.W.2d 46 (1984).
N.D.Payseno v. Padgett Co., 55 N.D. 154, 212 N.W. 836 (1927).
[FN2] Neb.State Surety Co. v. Peters, 197 Neb. 472, 249 N.W.2d 740 (1977).
[FN3] Neb.State Surety Co. v. Peters, 197 Neb. 472, 249 N.W.2d 740 (1977).
S.C.Pickens County v. Love, 171 S.C. 235, 171 S.E. 799 (1933).
[FN4] U.S.Moody ex rel U. S. v. MeGee, 41 F.2d 515 (C.C.A. 5th Cir. 1930).
La.Daigle v. Oakwood Homes, Inc., 460 So. 2d 51 (La. Ct. App. 1st Cir. 1984).
Penal bond provisions
Tenn.Savage v. Neal, 151 Tenn. 70, 268 S.W. 375 (1925).

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11 C.J.S. Bonds 39
[FN5] U.S.Moody ex rel U. S. v. MeGee, 41 F.2d 515 (C.C.A. 5th Cir. 1930).
La.State v. Read, 164 La. 315, 113 So. 860, 54 A.L.R. 383 (1927).
CJS BONDS 39
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40. Strict or liberal constructionSurety bonds

The terms of a surety bond should be construed strictly in favor of the surety.
The terms of a surety bond should be construed strictly in favor of the surety.[1] Sureties are chargeable
only according to the strict terms of the bond and thus, as against sureties, no implications are to be made in giv-
ing construction to the terms of a bond not clearly embraced within the language used.[2] Under some authorit-
ies, the liability of a surety on a statutory bond is measured and defined by the statute requiring the bond,[3] un-
less the bond amounts to a good common-law agreement enforceable according to its terms.[4]
[FN1] Nev.All Star Bonding v. State, 119 Nev. 47, 62 P.3d 1124 (2003).
[FN2] Minn. Ruthton Co-op. Creamery Co. v. Ruthton State Bank, 173 Minn. 255, 217 N.W. 133
(1927).
OhioFancher v. Kaneen, 5 Ohio N.P. (n.s.) 614, 18 Ohio Dec. 834, 1907 WL 799 (C.P. 1907).
Limitation on surety's liability
The surety cannot be held liable contrary to or beyond the condition of the bond.
Tex.Colonial American Cas. and Sur. Co. v. Scherer, 214 S.W.3d 725 (Tex. App. Austin 2007).
[FN3] IowaState Sur. Co. v. Lensing, 249 N.W.2d 608 (Iowa 1977).
Neb.State Surety Co. v. Peters, 197 Neb. 472, 249 N.W.2d 740 (1977).
[FN4] N.Y.Bedini v. Hodges, 238 A.D. 530, 264 N.Y.S. 522 (4th Dep't 1933).

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41. Governing law as part of bond

Laws pursuant to which bonds are executed constitute a part of the contract of the bond. The general rule is
that whatever is included in the bond, and is not required by the law, must be read out of it.
The statute pursuant to which a bond is executed constitutes a part of the bond as if incorporated in it.[1]
Parties executing a bond pursuant to statute are chargeable with notice of the statute.[2] Thus, where a bond is
given under the authority of a statute in force when it is executed, in the absence of anything appearing to show
a different intention it will be presumed that the intention of the parties was to execute such a bond as the law
required.[3] The court will read the statute into the bond contract,[4] and construe the bond in connection with
the statute,[5] the construction given to the statute by the courts,[6] and the statutory purpose,[7] so as to give
the bond the effect which must have been intended by the statute.[8] Thus, although the terms of the bond may
bear a broader construction, the liability of the parties will be confined to the measure of liability as contem-
plated by the law requiring the bond.[9]
With respect to matters of substance, as opposed to mere matters of form,[10] the general rule is that
whatever is included in the bond, and is not required by the law, must be read out of it.[11] Where a bond con-
tains the conditions prescribed by statute, and also contains conditions in excess of those so required, if the ex-
cess can be separated from the authorized portion without destroying the latter it may be rejected as surplusage
and the rest of the bond held valid, in the absence of a statutory provision expressly or by implication making it
void,[12] unless the language of the bond precludes a construction giving it validity.[13] However, in some
cases bonds containing excessive conditions have been held valid as being voluntarily given and founded on a
sufficient consideration outside of, and beyond, the statutory consideration,[14] and there is authority that a
bond which furthers public policy by providing greater protections to statutory beneficiaries than those provided
for by law will be enforced according to its terms as common-law, rather than statutory, bond.[15]
Amount of bond.
The general principle that statutory law must be read into a statutory bond has been held to mean the general
provisions of the statute, and to have no reference to the amount of the bond.[16] However, there is also author-

CJS BONDS 41 Page 2
11 C.J.S. Bonds 41
ity that a statutory bond should be posted for the amount required by law and not in excess thereof,[17] and that
where the amount of the penalty exceeds that required by statute, the bond will be valid as a statutory bond only
for the statutory amount.[18] Moreover, where the authority to take the bond is wholly derived from statute, if
the bond is in a penalty greater than that prescribed and is not voluntarily given, the entire bond will be void.[19
]
Subsequent law.
Ordinarily, the liability on a bond cannot be affected by a law passed subsequent to its execution;[20] but it
has been held that the law as it exists at the time of performance may govern the obligation of a bond, for every
contract is entered into subject to the right of the legislature to change the law.[21]
[FN1] Conn. Ames v. Commissioner of Motor Vehicles, 70 Conn. App. 790, 802 A.2d 126 (2002),
judgment aff'd, 267 Conn. 524, 839 A.2d 1250 (2004).
D.C.May v. Continental Cas. Co., 2007 WL 2669571 (D.C. 2007).
Tenn.State ex rel. Pope v. U.S. Fire Ins. Co., 145 S.W.3d 529 (Tenn. 2004).
Statute mandating bond as part of bond contract and controlling
Neb.Paus Motor Sales, Inc. v. Western Sur. Co., 6 Neb. App. 233, 572 N.W.2d 403 (1997).
Tex.Hartford Cas. Ins. Co. v. State, 159 S.W.3d 212 (Tex. App. Austin 2005), review denied, (Oct.
27, 2006); Gramercy Ins. Co. v. Arcadia Financial Ltd., 32 S.W.3d 402 (Tex. App. Houston 14th Dist.
2000).
[FN2] OhioAmerican Guaranty Co. v. Cliff Wood Coal & Supply Co., 115 Ohio St. 524, 155 N.E.
127 (1926).
[FN3] Ariz.U. S. Fidelity & Guaranty Co. v. Christoffel, 115 Ariz. 507, 566 P.2d 308 (Ct. App. Div.
2 1977).
Ill. Rosewood Corp. v. Transamerica Ins. Co., 8 Ill. App. 3d 592, 290 N.E.2d 656 (1st Dist. 1972),
judgment aff'd, 57 Ill. 2d 247, 311 N.E.2d 673 (1974).
Intention to comply with statute and nothing more
[FN4] Conn.Goldberg v. Hartford Fire Ins. Co., 269 Conn. 550, 849 A.2d 368 (2004).
Kan.Hartford Cas. Ins. Co. v. Credit Union 1 of Kansas, 268 Kan. 121, 992 P.2d 800 (1999).
Statutorily mandated terms read into bond whether actually included or not
Ill.Morton's of Chicago v. Industrial Com'n, 366 Ill. App. 3d 1056, 304 Ill. Dec. 508, 853 N.E.2d 40
(1st Dist. 2006).

CJS BONDS 41 Page 3
11 C.J.S. Bonds 41
No dilution of minimum statutory protections provided statutory beneficiaries
N.Y.Mount Florence Group v. City of Peekskill, 235 A.D.2d 787, 652 N.Y.S.2d 814 (3d Dep't 1997).
[FN5] Conn.New Britain Lumber Co. v. American Sur. Co. of New York, 113 Conn. 1, 154 A. 147
(1931).
Wash.Zagar v. Columbia Cas. Co., 181 Wash. 487, 43 P.2d 949 (1935).
Bond must be read with governing statute, which limits scope of bond
Minn.Metro Milwaukee Auto Auction v. Coulson, 604 N.W.2d 111 (Minn. Ct. App. 2000).
2 1977).
Kan.General Securities Co. v. Hindes, 119 Kan. 226, 237 P. 659 (1925).
W.Va.Hicks v. Randich, 106 W. Va. 109, 144 S.E. 887 (1928).
[FN7] Tenn.State ex rel. Pope v. U.S. Fire Ins. Co., 145 S.W.3d 529 (Tenn. 2004).
2 1977).
Kan.General Securities Co. v. Hindes, 119 Kan. 226, 237 P. 659 (1925).
W.Va.Hicks v. Randich, 106 W. Va. 109, 144 S.E. 887 (1928).
[FN9] IowaZapf v. Ridenour, 198 Iowa 1006, 200 N.W. 618 (1924).
La.Davis v. West Louisiana Bank, 155 La. 245, 99 So. 207 (1924).
OhioRoyal Indem. Co. v. Day & Maddock Co., 114 Ohio St. 58, 4 Ohio L. Abs. 89, 150 N.E. 426, 44
A.L.R. 374 (1926).
[FN10] La.Sievers v. Samuel, 172 La. 1005, 136 So. 33 (1931).
2 1977).
Mich. Lawrence v. American Sur. Co. of New York, 263 Mich. 586, 249 N.W. 3, 88 A.L.R. 535
(1933).
Presumptive intention to comply with statute and nothing more

CJS BONDS 41 Page 4
11 C.J.S. Bonds 41
[FN12] Colo.People v. Sochet, 70 Colo. 23, 196 P. 192 (1921).
W.Va.City of Charleston, for Use of Peck v. Dawson, 85 W. Va. 353, 101 S.E. 728 (1920).
Conditions not required by statute to be stricken as surplusage
Kan.Hartford Cas. Ins. Co. v. Credit Union 1 of Kansas, 268 Kan. 121, 992 P.2d 800 (1999).
Nonessential matters treated as mere surplusage, of no effect
IowaState Sur. Co. v. Lensing, 249 N.W.2d 608 (Iowa 1977).
[FN13] Mo.Citizens' Trust Co. v. Tindle, 272 Mo. 681, 199 S.W. 1025 (1917).
Neb.American Surety Co. of New York v. School Dist. No. 64 of Douglas County, 117 Neb. 6, 219
N.W. 583 (1928).
[FN14] Kan.Road Supply & Metal Co. v. Kansas Casualty & Surety Co., 121 Kan. 299, 246 P. 503
(1926).
Ky.Sauer v. Fidelity & Deposit Co. of Maryland, 192 Ky. 758, 234 S.W. 434 (1921).
[FN15] N.Y. Mount Florence Group v. City of Peekskill, 235 A.D.2d 787, 652 N.Y.S.2d 814 (3d
Dep't 1997).
[FN16] S.C.Bamberg County v. Maryland Cas. Co., 173 S.C. 106, 174 S.E. 917 (1934).
[FN17] La.Brown v. Edwards, 321 So. 2d 394 (La. Ct. App. 1st Cir. 1975).
[FN18] Tex.Meador v. Adams, 33 Tex. Civ. App. 167, 76 S.W. 238 (1903).
[FN19] U.S.U.S. v. Gordon, 11 U.S. 287, 3 L. Ed. 347, 1813 WL 1415 (1813).
[FN20] Ill.Mix v. Vail, 86 Ill. 40, 1877 WL 9656 (1877).
[FN21] N.Y.Horner v. Lyman, 2 Abb. Dec. 399, 4 Keyes 237 (N.Y. 1868).
CJS BONDS 41
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11 C.J.S. Bonds 42

Bonds
Karl Oakes, J.D.

42. Giving effect to intention of parties, generally

A bond should be construed, if possible, so as to give effect to the intention of the parties as expressed
therein.
As a general rule, a bond should be so construed as to give force, effect, and meaning to all the words and
clauses used in the bond, and so as best to effectuate and carry into operation the reasonable intention of the
parties,[1] and such construction should be given, if this can fairly be done, which will support rather than defeat
the bond.[2] The rule is not affected by a statutory provision that a bond shall not be void for want of form or
substance, as such a provision will not import to a bond a different effect from that actually intended by the
parties.[3]
In arriving at the intention of the parties, the terms used in the bond should be construed according to the or-
dinary and reasonable meaning of the language employed,[4] although a departure will be made from the letter
of a condition in order to carry into effect the intention,[5] and this intention will be enforced even though it dif-
fers from the literal wording of the bond.[6] The doctrine of last antecedent, sometimes resorted to in finding the
meaning of relative words, does not operate to defeat the intention otherwise manifested.[7]
In construing a bond or the conditions thereof the court may, where the intention is manifest from the instru-
ment itself, transpose or reject meaningless and contradictory words,[8] provided enough remains to make the
bond sensible.[9] The court may supply words accidentally omitted, to give effect to the real meaning of the
parties.[10] However, when the language of a bond is clear and unambiguous, the court may not vary it.[11]
Thus, the court has no right to presume that contracting parties intended to insert a provision other or different
from that which the plain language used would indicate, and then to give a construction to the contract which
would be legitimate if the bond contained the supposed omitted provision.[12]
Precise language as controlling over general language.

The recitals in a bond purporting to express the precise intention of the parties thereto will control its condi-
tions given in general terms and prevent a more extensive operation of the bond than was intended by the parties
as disclosed by the recitals.[13]

CJS BONDS 42 Page 2
11 C.J.S. Bonds 42
Punctuation.
Punctuation should not control, neither should it be ignored, in considering what the makers of the instru-
ment meant by the language employed.[14] The court may also employ proper punctuation marks in reading the
bond.[15]
Court order or decree.

While an instrument executed in pursuance of an order or decree of the court is to be construed according to
the intention of the tribunal which directed its execution, a general order of court relative to the subject matter of
a bond cannot vary or control the condition of the bond.[16]
[FN1] U.S.Lite-Air Products, Inc. v. Fidelity & Deposit Co. of Maryland, 437 F. Supp. 801 (E.D. Pa.
1977).
Colo.Powder Horn Constructors, Inc. v. City of Florence, 754 P.2d 356 (Colo. 1988).
Minn.Whitehill v. Seaway Port Authority of Duluth, Minn., 349 N.W.2d 313 (Minn. Ct. App. 1984).
Unambiguous bond construed in accordance with parties' plain intent
Conn. Colorado Structures, Inc. v. Insurance Co. of the West, 161 Wash. 2d 577, 167 P.3d 1125
(2007).
[FN2] Mont.Gary Hay & Grain Co. v. Fidelity & Deposit Co. of Maryland, 79 Mont. 111, 255 P. 722
(1927).
[FN3] Ind.Sturgis v. Rogers, 26 Ind. 1, 1866 WL 2425 (1866).
[FN4] Ariz.Doran v. Oasis Printing House, 24 Ariz. 475, 211 P. 562 (1922).
IowaU.S. Fidelity & Guaranty Co. v. Iowa Telephone Co., 174 Iowa 476, 156 N.W. 727 (1916).
Unambiguous expression as binding court, see 37.
[FN5] Mich.Pulling v. Schreiber, 240 Mich. 333, 215 N.W. 381 (1927).
[FN6] U.S.Cooke v. Graham's Adm'r, 7 U.S. 229, 2 L. Ed. 420, 1805 WL 1090 (1805).
[FN7] Tex.Witherspoon Oil Co. v. Randolph, 298 S.W. 520 (Tex. Comm'n App. 1927).
[FN8] Cal.C. Ganahl Lumber Co. v. Thompson, 205 Cal. 354, 270 P. 965 (1928).
[FN9] N.C.Iredell v. Barbee, 31 N.C. 250, 9 Ired. 250, 1848 WL 1397 (1848).
[FN10] N.Y.American Exch. Nat. Bank v. Goubert, 135 A.D. 371, 120 N.Y.S. 397 (1st Dep't 1909).
[FN11] 37.

CJS BONDS 42 Page 3
11 C.J.S. Bonds 42
[FN12] Fla.Florida School-Book Depository v. Liddon, 114 Fla. 149, 153 So. 902 (1934).
[FN13] Mich.Utter v. Leach, 214 Mich. 31, 181 N.W. 999 (1921).
[FN14] Ark.Crawford v. Ozark Ins. Co., 97 Ark. 549, 134 S.W. 951 (1911).
Ill.Hawes v. Sternheim, 57 Ill. App. 126, 1894 WL 2914 (1st Dist. 1894), aff'd, 156 Ill. 341, 40 N.E.
947 (1895).
[FN15] Ala.Caldwell v. U.S. Fidelity & Guaranty Co., 205 Ala. 463, 88 So. 574 (1921).
[FN16] Okla.Chicago, R.I. & P. Ry. Co. v. Cimarron Tp., Kingfisher County, 1917 OK 585, 68 Okla.
7, 170 P. 909 (1917).
CJS BONDS 42
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Bonds
Karl Oakes, J.D.

43. Consideration of entire instrument; memoranda and indorsements as parts of bond

In construing a bond, the entire instrument should be considered. Where so intended, memoranda or in-
dorsements made on a bond at the time of execution become a part thereof.
Since the actual contract between the parties to a bond is expressed by the entire instrument, the whole writ-
ing, including every word, phrase, and sentence, must be considered so that the intention may, if possible, be
gathered therefrom.[1] A bond should be construed as a whole and, if reasonably possible, in a way that effectu-
ates all of its provisions.[2] In the case of a bond with a condition, the latter may be read and taken into consid-
eration in order to explain the obligatory part of the instrument.[3]
A memorandum or an indorsement made on a bond at the time of its execution may become a part thereof,
where it is evidently so intended by the parties.[4] This rule has been held applicable even though such memor-
andum is without date,[5] or is made at a date subsequent to the execution of the bond on which it is indorsed.[6]
In order to make a subsequent agreement respecting a bond a part thereof, it must be so ingrafted on the
bond that the original and the ingrafted matter constitute inseparable parts of an entire instrument; otherwise, it
must be pleaded as matter of defense.[7]
An indorsement of a payment on a bond is no more than a receipt and constitutes no part of the bond.[8]
1977).
N.J.City of Bridgeton v. Fidelity & Deposit Co. of Maryland, 88 N.J.L. 645, 96 A. 918 (N.J. Ct. Err.
& App. 1916).

CJS BONDS 43 Page 2
11 C.J.S. Bonds 43
1125 (2007).
[FN3] Ill.Chicago, B. & Q.R. Co. v. City of Aurora, 99 Ill. 205, 1881 WL 10538 (1881).
S.C.Gyles v. Valk, 29 S.C.L. 460, 2 Speers 460, 1844 WL 2603 (Ct. App. Law 1844).
[FN4] Va.Peyton v. Harman, 63 Va. 643, 22 Gratt. 643, 1872 WL 5232 (1872).
[FN5] Va.Gordon v. Frazier, 2 Va. 130, 2 Wash. 130, 1795 WL 518 (1795).
[FN6] Va.Smith's Ex'r v. Spiller, 51 Va. 318, 10 Gratt. 318, 1853 WL 3229 (1853).
[FN7] Va.Carter v. Noland, 86 Va. 568, 10 S.E. 605 (1890).
[FN8] N.C.Simms v. Paschall, 27 N.C. 276, 5 Ired. 276, 1844 WL 1063 (1844).
CJS BONDS 43
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11 C.J.S. Bonds 44

Bonds
Karl Oakes, J.D.

44. Reference to other instruments

West's Key Number Digest, Mortgages 105
Where a bond and another instrument relate to and form one and the same transaction, or where proper ref-
erence is made by the bond to a collateral agreement, such instrument or agreement becomes a part of the bond,
and the two should be construed as a unit.
Generally where a bond and another contract or instrument relate to and form one and the same transaction,
or the bond refers to such other instrument or is conditioned for the performance of specific agreements set forth
therein, such instrument with all its stipulations, limitations, or restrictions becomes a part of the bond, and the
two should be read together and construed as a whole,[1] although if only specific parts of another instrument
are referred to, only so much of such instrument is incorporated in the bond as it is evident the parties intended
to embody or to rely on.[2] The fact that the instrument referred to is not signed by all the parties to the bond
does not prevent their being construed together.[3] However, the rule does not apply to a bond, not conditioned
as required by statute, as against a third person whom the statute was intended to protect.[4]
In accordance with the foregoing rules, a bond given by a contractor should be construed together with the
contract or undertaking it is intended to secure.[5] A bond should also be construed with the mortgage given to
secure it,[6] or with the will on which it is based,[7] or with the specifications of a contract to which it directly
refers,[8] unless there are irreconcilable differences between the two documents.[9]
Under some authority, limitations in a trust deed on the right of bondholders to sue are binding on bond-
holders, where the bonds are made subject to all provisions of the trust deed,[10] although it has been held that a
bond referring to a trust deed for a description of the property and the nature of the security does not incorporate
by reference a trust deed provision limiting the right to sue.[11] Where a bond and mortgage are given for the
same debt, the bond is prima facie evidence of the contract terms,[12] and where the provisions in a bond and its
collateral agreement are inconsistent, the terms of the bond will control.[13]

CJS BONDS 44 Page 2
11 C.J.S. Bonds 44
[FN1] Colo.Powder Horn Constructors, Inc. v. City of Florence, 754 P.2d 356 (Colo. 1988).
Ill.Chicago Title & Trust Co. v. Bamburg, 361 Ill. 291, 198 N.E. 10 (1935).
W.Va.Tug River Lumber Co. v. Smithey, 107 W. Va. 482, 148 S.E. 850 (1929).
Strict construction of bond incorporating mortgage provisions by reference
Mich.Mendelson v. Realty Mortg. Corp., 257 Mich. 442, 241 N.W. 154 (1932).
[FN2] Wis.Pollard v. Tobin, 211 Wis. 405, 247 N.W. 453 (1933).
[FN3] Ala.Forst v. Leonard, 112 Ala. 296, 20 So. 587 (1896).
[FN4] Wash.Brown Bros. v. Columbia Irr. Dist., 82 Wash. 274, 144 P. 74 (1914).
[FN5] Cal.Callan v. Empire State Surety Co., 20 Cal. App. 483, 129 P. 978 (1st Dist. 1912).
Md.State Highway Administration v. Transamerica Ins. Co., 278 Md. 690, 367 A.2d 509 (1976).
UtahM.H. Walker Realty Co. v. American Surety Co. of New York, 60 Utah 435, 211 P. 998 (1922).
[FN6] Mass.Kattar v. Demoulas, 433 Mass. 1, 739 N.E.2d 246 (2000).
Vt.Huntington v. McCarty, 174 Vt. 69, 807 A.2d 950 (2002).
Promissory note and trust deed
U.S. In re Crystal Properties, Ltd., L.P., 268 F.3d 743 (9th Cir. 2001); In re Lemka, 201 B.R. 765
(Bankr. E.D. Tenn. 1996).
Conn.Bank of New York v. Conway, 50 Conn. Supp. 189, 916 A.2d 130 (Super. Ct. 2006).
Or.Vertopoulos v. Siskiyou Silicates, Inc., 177 Or. App. 597, 34 P.3d 704 (2001).
Tex. Robinson v. Saxon Mortgage Services, Inc., 2007 WL 2214439 (Tex. App. Austin 2007); The
Cadle Co. v. Butler, 951 S.W.2d 901 (Tex. App. Corpus Christi 1997).
UtahTretheway v. Furstenau, 2001 UT App 400, 40 P.3d 649 (Utah Ct. App. 2001).
Contemporaneous agreement read together with mortgage and note
Fla.Sardon Foundation v. New Horizons Service Dogs, Inc., 852 So. 2d 416 (Fla. Dist. Ct. App. 5th
Dist. 2003).
[FN7] N.J.Lanterman's Adm'r v. Lanterman, 42 N.J. Eq. 319, 5 A. 132 (Ch. 1886).
Va.Columbian College v. Clopton's Adm'r, 48 Va. 168, 7 Gratt. 168, 1850 WL 3051 (1850).
[FN8] Wash.Wheeler, Osgood & Co. v. Everett Land Co., 14 Wash. 630, 45 P. 316 (1896).

CJS BONDS 44 Page 3
11 C.J.S. Bonds 44
Incorporation of specifications
Md.State Highway Administration v. Transamerica Ins. Co., 278 Md. 690, 367 A.2d 509 (1976).
[FN9]
Deed of trust and note secured by it
U.S.In re Lemka, 201 B.R. 765 (Bankr. E.D. Tenn. 1996).
[FN10] Wis.Oster v. Buildings Development Co., 213 Wis. 481, 252 N.W. 168 (1934).
[FN11] Ill.Oswianza v. Wengler & Mandell, 358 Ill. 302, 193 N.E. 123 (1934).
[FN12] N.J.Church of the Sacred Heart of Trenton v. Pingree Holding Co., 105 N.J. Eq. 97, 147 A.
162 (Ch. 1929).
[FN13] N.Y.Adler v. Berkowitz, 254 N.Y. 433, 173 N.E. 574 (1930).
CJS BONDS 44
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Bonds
Karl Oakes, J.D.

45. Consideration of attendant circumstances

Consideration of attendant circumstances is appropriate to resolve ambiguity in a bond.
Where ambiguity or doubt in construction exists, a bond should be construed in the light of the circum-
stances surrounding the execution thereof, the object to be accomplished, the situation of the parties, and the re-
lations existing between them.[1] If doubt exists as to the type of instrument which the parties sought to enact,
the attending circumstances may be viewed to determine the kind of instrument that was within their contempla-
tion and design.[2] The nature of the duty of the obligor and the character of the obligee must also be regarded
as explanatory of the intent.[3]
1977).
N.Y.Grafton v. U.S. Fidelity & Guaranty Co., 227 N.Y. 162, 124 N.E. 742 (1919).
[FN2] Va.Smith's Ex'r v. Spiller, 51 Va. 318, 10 Gratt. 318, 1853 WL 3229 (1853).
[FN3] Md.Strawbridge v. Baltimore & O.R. Co., 14 Md. 360, 1859 WL 5065 (1859).
N.Y.McKillip v. McKillip, 8 Barb. 552, 1850 WL 4648 (N.Y. Gen. Term 1850).
CJS BONDS 45
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11 C.J.S. Bonds IV B Refs.

Bonds
Karl Oakes, J.D.

B. Nature of Contract
Research References
A.L.R. Library
West's A.L.R. Digest, Bonds 48 , 50
CJS BONDS IV B REF
END OF DOCUMENT

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Bonds
Karl Oakes, J.D.

46. Generally

In determining whether an instrument is a bond or other contract, the general rules of construction apply.
The general rules of construction apply in determining whether an instrument is a bond or other contract,[1]
or a testamentary paper.[2]
Appellate courts have the authority and the duty to determine whether what purports to be a bond is, in fact,
a bond.[3] Where the parties have intended an instrument as a bond, the court will not construe it otherwise for
the benefit of one of them.[4]
[FN1] S.C.Marston v. Rivers, 138 S.C. 295, 136 S.E. 222 (1926).
[FN2] Md.Cover v. Stem, 67 Md. 449, 10 A. 231 (1887).
Va.Smith's Ex'r v. Spiller, 51 Va. 318, 10 Gratt. 318, 1853 WL 3229 (1853).
[FN3] La.McKowen v. Gulf States Utilities Co., 351 So. 2d 1248 (La. Ct. App. 1st Cir. 1977).
[FN4] S.C.Marston v. Rivers, 138 S.C. 295, 136 S.E. 222 (1926).
CJS BONDS 46
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Bonds
Karl Oakes, J.D.

47. Common-law or statutory bond

The general distinction between a statutory and a common-law bond is that the former is required by, and
conforms to, a statute while the latter is either one not required by statute, or, if given under a statute, is insuffi-
cient to fulfill its requirements.
As common-law bonds and statutory bonds are to be distinguished, in that the latter conform to a statute
while the former do not, although so intended,[1] and as the rights and liabilities arising under the different
forms of bonds may, likewise, be different, it becomes important to ascertain from the language used, together
with the facts surrounding its execution, whether a given instrument takes effect as a statutory bond or as a com-
mon-law bond.[2]
Where nothing appears in the proceedings to show the character of a bond which is the foundation of an ac-
tion, it may be regarded as a common-law bond.[3]
[FN1] 1, 18.
[FN2] Me.Bell v. Furbush, 56 Me. 178, 1868 WL 1778 (1868).
[FN3] Va.Richardson's Adm'r v. Prince George Justices, 52 Va. 190, 11 Gratt. 190, 1854 WL 3098
(1854).
CJS BONDS 47
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Bonds
Karl Oakes, J.D.

C. Parties
Research References
A.L.R. Library
CJS BONDS IV C REF
END OF DOCUMENT

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Bonds
Karl Oakes, J.D.

C. Parties
48. Generally

The general rules of construction apply in determining the relative situations, rights, and duties of the
parties to a bond.
General rules of construction apply in ascertaining the relative situations, rights, and duties of the parties as
well as the characters sustained by them under the bond.[1] Considerable liberality is exercised in construing
designations of obligees in bonds, so long as the intent of the parties is clear.[2]
An expressed intention with respect as to who shall be considered parties prevails over any implied inten-
tion that the instrument was given for the benefit of another.[3] The language of the bond may be such as to re-
quire a coobligor to perform the condition of the bond, although he or she is described as surety.[4]
The heirs of the obligors will not be bound by the bond if the intent not to bind them appears from the whole
bond.[5]
A bond with the payee's name left blank is, in legal effect, payable to bearer.[6] A bond payable to one per-
son cannot operate as a lien in favor of another, in the absence of a statute to that effect.[7]
[FN1]
Obligees as per statute
OhioRoyal Indem. Co. v. Day & Maddock Co., 114 Ohio St. 58, 4 Ohio L. Abs. 89, 150 N.E. 426, 44
A.L.R. 374 (1926).
General rules of construction, see 37 to 45.
[FN2] U.S.Franz v. Buder, 34 F.2d 353 (C.C.A. 8th Cir. 1929).

CJS BONDS 48 Page 2
11 C.J.S. Bonds 48
[FN3] Del.Robinson v. Ortiz, 29 Del. 370, 6 Boyce 370, 100 A. 408 (Super. Ct. 1917).
[FN4] Va.Ward v. Johnston, 15 Va. 45, 1 Munf. 45, 1810 WL 515 (1810).
[FN5] Va.Huston's Adm'r v. Cantril, 38 Va. 136, 1840 WL 2223 (1840).
[FN6] U.S.Keene Five-Cent Sav. Bank v. Lyon County of State of Iowa, 90 F. 523 (C.C.N.D. Iowa
1898), aff'd, 100 F. 337 (C.C.A. 8th Cir. 1900).
[FN7] Va.Lynchburg Trust & Savings Bank v. Elliott, 94 Va. 700, 27 S.E. 467 (1897).
CJS BONDS 48
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CJS BONDS 49 Page 1
11 C.J.S. Bonds 49

Bonds
Karl Oakes, J.D.

C. Parties
49. Joint or several

A bond may be joint or several as to obligors or obligees.
If the bond is joint in its terms and there is nothing clearly indicating a several interest or liability, and the
instrument in all its parts evidences a joint purpose, then it is a joint bond, or the liability thereon is joint.[1]
If a several interest is expressly or by construction clearly evidenced by the terms and conditions of the
bond as being that exclusively intended by the parties, it will be deemed a several obligation, even though a part
of the language used is that of a joint and several obligation.[2] A bond purporting to be the act of one party, but
subscribed by several without any indication of the capacity in which either signed, may be taken to be the sev-
eral obligation of each or the joint and several obligation of all.[3] Conversely, a bond purporting to be joint and
several is several if signed by one only.[4]
Whenever it clearly appears that the party on whose behalf a bond is executed by others executes such in-
strument when the law does not require him or her to execute it, the obligation of such unnecessary party is sev-
eral, notwithstanding a statute providing that an obligation imposed on several persons is presumed to be joint
and several, as under such circumstances the statutory presumption is destroyed.[5]
Joint as to part and several as to part.

A bond may be joint as to part of the obligors and several as to part, and in this connection the assent and
knowledge of the others as to the execution by an obligor is important as is also the time of such execution.[6]
Two or more obligees.

A bond given to two or more obligees may be given to them jointly or severally, but not jointly and sever-
ally.[7] The general rule is that if the interest of the obligees is joint, the bond will be deemed to have been giv-
en to them jointly; if their interests are several, then severally.[8]
[FN1] N.Y.Wood v. Fisk, 63 N.Y. 245, 1875 WL 10873 (1875).

CJS BONDS 49 Page 2
11 C.J.S. Bonds 49
[FN2] Wash.Northern Pac. Ry. Co. v. Fidelity & Deposit Co. of Maryland, 74 Wash. 543, 134 P. 498
(1913).
[FN3] Pa.Leith v. Bush, 61 Pa. 395, 1869 WL 7596 (1869).
[FN4] N.J.Ogden v. Wood, 16 N.J.L. 453, 1838 WL 2424 (N.J. 1838).
[FN5] S.D.Palmer v. Baker, 45 S.D. 196, 186 N.W. 951 (1922).
[FN6] Va.Baber v. Cook, 38 Va. 606, 1841 WL 2457 (1841).
[FN7] Okla.Title Guar. & Sur. Co. v. Foster, 1920 OK 391, 84 Okla. 291, 203 P. 231 (1920).
[FN8] Okla.Title Guar. & Sur. Co. v. Foster, 1920 OK 391, 84 Okla. 291, 203 P. 231 (1920).
CJS BONDS 49
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CJS BONDS 50 Page 1
11 C.J.S. Bonds 50

Bonds
Karl Oakes, J.D.

C. Parties
50. Joint or joint and several

Whether obligors are jointly and severally liable on a bond depends on the intention of the parties as ex-
pressed therein.
Where two or more persons become obligors in a bond, whether there is a several as well as a joint liability
on the bond depends on the intention and the interests of the parties as ascertained by a construction of the bond
which they have executed.[1]
At law the presumption is that, where two or more persons enter into a bond without adding language dis-
closing a different intention, the undertaking is a joint and not a several one, although this presumption may be
rebutted where the bond contains words of severance showing that it was the intention of the parties that it
should be several as well as joint.[2] Under some statutes such obligations are presumed to be joint and several.[
3]
A bond is generally held to be joint and several where the bond reads, we bind ourselves jointly and sever-
ally,[4] or we bind ourselves, and each of us.[5] Similarly, a bond is held to be joint and several where the
obligors declare that they bind ourselves, our heirs, etc., and every one of them,[6] or bind ourselves sev-
erally and firmly.[7] A bond is held to be joint and several where it recites that the the principal binds himself,
etc., and the surety binds himself, etc.[8]
Where a joint and several demand is superseded by a joint bond between the same parties, it will be pre-
sumed that a joint and several bond was intended.[9] Where some of the obligors are merely sureties, it is clear
that no such presumption can be entertained, for there existed against them no equity in favor of the obligee pre-
vious to the execution of the bond; and in such a case it will require a clear and strong case to have a joint bond
declared joint and several on the ground of fraud, accident, or mistake.[10]
[FN1] Pa.Morrison v. American Surety Co. of New York, 224 Pa. 41, 73 A. 10 (1909).

CJS BONDS 50 Page 2
11 C.J.S. Bonds 50
[FN3] S.D.Palmer v. Baker, 45 S.D. 196, 186 N.W. 951 (1922).
[FN4] Cal.People v. Love, 25 Cal. 520, 1864 WL 675 (1864).
[FN5] Conn.Carter v. Carter, 2 Day 442, 1807 WL 50 (Conn. 1807).
[FN6] Pa.Leith v. Bush, 61 Pa. 395, 1869 WL 7596 (1869).
[FN7] Ind.Willey v. State ex rel. Smith, 3 Ind. 500, 1852 WL 3016 (1852).
Mich.St. Joseph County Sup'rs v. Coffenbury, 1 Mich. 355, 1850 WL 3344 (1850).
[FN9] N.Y.Yorks v. Peck, 14 Barb. 644, 1853 WL 5719 (N.Y. Gen. Term 1853).
[FN10] U.S.Pickersgill v. Lahens, 82 U.S. 140, 21 L. Ed. 119, 1872 WL 15375 (1872).
CJS BONDS 50
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CJS BONDS 51 Page 1
11 C.J.S. Bonds 51

Bonds
Karl Oakes, J.D.

C. Parties
51. Bonds executed by or to persons in representative capacity

A duly authorized agent, who executes a bond in the name of his principal and who enters into no covenant
for himself or herself, binds his principal thereby and is not personally liable thereon. The designation of the ob-
ligee as a representative may determine whether the person so designated or his or her principal is entitled to the
benefits of the bond.
The liability of a party as principal on a bond depends on the act done and not on the form of the signature.[
1] Where an agent, with the requisite authority, executes a bond, not for himself, but for and in the name of his
or her principal, and in the body of the obligation enters into no covenant for himself or herself, but binds the
principal alone for the performance of the contract, the agent is exempt from responsibility, and the obligatory
effect of the bond on the principal is the same as if the principal had executed it personally.[2] However, where
a party to a bond describes himself or herself as an agent, and covenants that the party, or that his or her princip-
al, will perform a certain thing, and executes the bond in his or her own name, the term agent is considered
merely as descriptive of the obligor so that the person so covenanting, notwithstanding his or her description as
agent, is personally responsible on the bond,[3] unless it is expressly agreed that the agent shall not be person-
ally responsible.[4]
An agent who executes a bond in excess of his or her authority has also been held to be personally liable
thereon,[5] and such bond has been held not binding on the principal of sureties.[6] Words following the names
of obligees, describing them as representatives, may control whether they or their principals are entitled to the
benefit of the bond.[7]
[FN1] Mo.Franklin Ave. German Sav. Institution v. Board of Education of Town of Roscoe, 75 Mo.
408, 1882 WL 9620 (1882).
[FN2] Minn. Board of Com'rs of St. Louis County v. Manufacturers' Bank, 69 Minn. 421, 72 N.W.
701 (1897).

CJS BONDS 51 Page 2
11 C.J.S. Bonds 51
[FN3] Neb.Northup v. Bathrick, 78 Neb. 62, 110 N.W. 685 (1907).
[FN4] Tex.Elwell v. Tatum, 6 Tex. Civ. App. 397, 24 S.W. 71 (1893).
[FN5] Ala.Whiteside v. Jennings, 19 Ala. 784, 1851 WL 404 (1851).
[FN6] Cal.Malic v. Fox, 4 Cal. Unrep. 19, 33 P. 441 (Cal. 1893).
[FN7] W.Va.Clark v. Nickell, 73 W. Va. 69, 79 S.E. 1020 (1913).
CJS BONDS 51
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CJS BONDS IV D REF Page 1
11 C.J.S. Bonds IV D Refs.

Bonds
Karl Oakes, J.D.

D. Scope of Conditions and Extent of Liability
Research References
A.L.R. Library
West's A.L.R. Digest, Bonds 56 , 57 , 61 to 63
CJS BONDS IV D REF
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CJS BONDS 52 Page 1
11 C.J.S. Bonds 52

Bonds
Karl Oakes, J.D.

1. In General
52. Generally

The legal import of the terms of a bond determines the scope of the conditions and the extent of the liability
incurred.
The extent or limitation of the liability incurred by the parties due to a bond is fixed by the legal import of
its terms and conditions,[1] which should be construed according to the ordinary and reasonable meaning of the
language employed.[2] The express liability contained in the bond cannot be restricted by the mere addition of
figures opposite the obligors' names.[3]
In determining the extent of liability on a statutory bond, the language of the statute is controlling if there is
any conflict between the statute and the bond.[4]
A bond which confers upon the obligee a right to do certain things depending on the exercise of his or her
judgment or discretion means a reasonable and honest exercise thereof and not a wanton and capricious exercise
of the right.[5] A bond conditioned on proper care of property during the pendency of the suit requires only due
care of such property.[6]
Conditions precedent and subsequent.

A condition in a bond is precedent if its occurrence triggers a duty of performance that had not arisen previ-
ously, but subsequent if its occurrence defeats a duty of performance that had arisen previously.[7]
Bond to secure debt payment.

A bond given to secure the payment of debts includes not only debts paid by the obligee, but also those he
or she is liable to pay.[8] However, in the absence of language to that effect it does not include the indebtedness
of a firm of which the principal is a member.[9]
A bond given to secure the payment of certain notes does not secure renewal notes substituted in place of
the original notes.[10]

CJS BONDS 52 Page 2
11 C.J.S. Bonds 52
[FN1] U.S.Oregon Short Line R. Co. v. Teton Coal Co., 35 F.2d 919 (C.C.A. 9th Cir. 1929).
Mich.Pulling v. Schreiber, 240 Mich. 333, 215 N.W. 381 (1927).
Mont.American Surety Co. of New York v. Butler, 86 Mont. 584, 284 P. 1011 (1930).
[FN2] Ark.Love v. Cahn, 93 Ark. 215, 124 S.W. 259 (1909).
[FN3] Mich.Fourth Nat. Bank v. Olney, 63 Mich. 58, 29 N.W. 513 (1886).
Tex.Cordray v. State, 55 Tex. 140, 1881 WL 9757 (1881).
[FN4] Ark.Miller v. State, 262 Ark. 223, 555 S.W.2d 563 (1977).
[FN5] N.H.Berry v. Harris, 43 N.H. 376, 1861 WL 2124 (1861).
[FN6] Tex.Sherrill v. Tubbs, 270 S.W. 190 (Tex. Civ. App. Dallas 1925).
1125 (2007).
[FN8] Conn.Johnson v. Smith, 2 Root 414, 1796 WL 480 (Conn. Super. Ct. 1796).
[FN9] OhioDonley v. Liberty Improvement Bank, 40 Ohio St. 47, 1883 WL 38 (1883).
[FN10] Pa.American Trust Co. v. Louderback, 220 Pa. 197, 69 A. 673 (1908).
CJS BONDS 52
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CJS BONDS 53 Page 1
11 C.J.S. Bonds 53

Bonds
Karl Oakes, J.D.

1. In General
53. Commencement and duration of liability

The terms of the bond control the commencement and duration of the obligor's liability.
Generally, the time when the obligor's liability under the bond commences and the length of time for which
it continues depend on the terms of the bond.[1] If the delivery and acceptance is not made until some time after
the date of the bond, on acceptance, the bond relates back and commences to run from the time expressed, and
continues to run for the period expressed in the bond.[2]
General and indefinite words in the bond will be controlled by a recital specifying the time in which a con-
dition is to be performed, and whether the liability is a continuing one,[3] although the time will not be extended
by an implied condition beyond that which it was evidently intended by the terms of the obligation to cover.[4]
If the bond on its face refers exclusively to the time of execution, then that time governs the acts and subject
matter,[5] or the liability specified may be that incurred simultaneously with the delivery and not simply a liabil-
ity existing at the time the bond was delivered.[6]
No retroactive effect will be given a bond unless clearly so intended.[7] Where several successive bonds ex-
ist covering different periods, the commission of a default renders the principal liable on the bond in force when
the default is committed.[8]
[FN1] Kan.Turbett v. Marty, 122 Kan. 149, 251 P. 182 (1926).
[FN2] U.S.Aetna Life Ins. Co. v. American Sur. Co., 34 F. 291 (C.C.D. Conn. 1888).
[FN3] Mass.O'Brien v. Murphy, 175 Mass. 253, 56 N.E. 283 (1900).
No continuing liability

CJS BONDS 53 Page 2
11 C.J.S. Bonds 53
[FN4] N.Y. Thayer v. Erie County Savings Bank, 160 A.D. 300, 145 N.Y.S. 808 (4th Dep't 1914),
aff'd, 217 N.Y. 501, 112 N.E. 446 (1916).
[FN5] Ark.Farmers' Loan & Trust Co. v. Pine Bluff, M. & N. O. Ry. Co., 57 Ark. 334, 21 S.W. 652
(1893).
Ind.Skelton v. Ward, 51 Ind. 46, 1875 WL 6008 (1875).
[FN6] N.Y.Belloni v. Freeborn, 63 N.Y. 383, 1875 WL 10893 (1875).
[FN7] Tenn.Stevenson v. Union Indem. Co., 160 Tenn. 603, 28 S.W.2d 346 (1930).
[FN8] Wash.Zagar v. Columbia Cas. Co., 181 Wash. 487, 43 P.2d 949 (1935).
CJS BONDS 53
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CJS BONDS 54 Page 1
11 C.J.S. Bonds 54

Bonds
Karl Oakes, J.D.

1. In General
54. Express, implied, constructive and alternative conditions

Liability not intended by the parties nor warranted by its conditions will not be construed into a bond. Con-
ditions in a bond may be expressly or implicitly in the alternative and will be construed accordingly.
A condition in a bond is classified according to its origin and effect, and may be express, implied in fact, or
constructive.[1]
In the absence of a mistake a new condition will not be added where the express conditions clearly show
that the bond is complete on its face.[2] The meaning of words will not be enlarged so as to impose a duty other
than that warranted by the legal construction thereof according to the obvious intent,[3] although that which is
clearly implied as intended, under the law, to be done in performance of the express condition will be deemed a
part of the obligation.[4]
Conditions may be expressly or implicitly in the alternative and will be construed accordingly.[5] Where
one of such alternatives becomes impossible by lapse of time or otherwise, except by an act of the obligee, the
bond is equivalent to one with a single condition.[6]
1125 (2007).
[FN2] Ind.Dunlap v. Eden, 15 Ind. App. 575, 44 N.E. 560 (1896).
[FN3] Ark.Love v. Cahn, 93 Ark. 215, 124 S.W. 259 (1909).
N.H.Erskine v. Erskine, 13 N.H. 436, 1843 WL 2082 (1843).
[FN4] Mo.Montgomery v. Harker, 81 Mo. 63, 1883 WL 9567 (1883).

CJS BONDS 54 Page 2
11 C.J.S. Bonds 54
Tex.Hanks v. Pickett, 27 Tex. 97, 1863 WL 2800 (1863).
[FN5] U.S.U.S. v. Mora, 97 U.S. 413, 24 L. Ed. 1013, 1878 WL 18402 (1878).
Severable indemnifying and forfeiture conditions
U.S.Eagle Indem. Co. v. U.S., 22 F.2d 388 (C.C.A. 4th Cir. 1927).
[FN6] Kan.Whetstone v. Ottawa University, 13 Kan. 320, 1874 WL 729 (1874).
CJS BONDS 54
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CJS BONDS 55 Page 1
11 C.J.S. Bonds 55

Bonds
Karl Oakes, J.D.

1. In General
55. Impossible, illegal, or repugnant conditions

A condition, to be valid, must be for the performance of an act that is lawful and capable of performance.
A condition, to be valid, must be for the performance of an act that is lawful and capable of performance.[1]
Any apparent repugnance in the condition of a bond must, if possible, be reconciled by giving it effect according
to the evident intent of the whole instrument.[2] If the condition is for the performance of an act that is incapable
of performance the condition may be rendered void, although the bond, nevertheless, remains binding.[3]
Where a corporate resolution, under which a bond is issued, is incorporated into the bond by reference, a
provision in the resolution which conflicts with a part of the bond is inapplicable and nugatory.[4]
[FN1] Ark.McSpadden v. Leonard, 159 Ark. 193, 251 S.W. 694 (1923).
[FN2] N.M.Davy v. McNeill, 31 N.M. 7, 240 P. 482 (1925).
[FN3] Ala.Ward v. Hood, 124 Ala. 570, 27 So. 245 (1900).
[FN4] N.Y.Goodjon v. United Bond & Bldg. Corp., 226 A.D. 137, 234 N.Y.S. 522 (4th Dep't 1929).
CJS BONDS 55
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CJS BONDS 56 Page 1
11 C.J.S. Bonds 56

Bonds
Karl Oakes, J.D.

1. In General
56. Independent and dependent conditions

In determining whether conditions to a bond are independent or dependent, the intention of the parties con-
trols.
Where it is apparent that the parties intended that the conditions should be independent, such construction
will be given them, but where the acts stipulated to be done are to be done at different times, the stipulations are
generally to be construed as independent of each other.[1] This rule, however, is not inflexible, but yields
wholly or in part to the intention of the parties and to the good sense and equity of the case.[2] If the intention is
clear to make the conditions either dependent or independent, the courts will enforce the obligation as made,
even where it is difficult to determine whether one promise is the consideration for another, or whether the per-
formance and not the mere promise is the consideration.[3] In determining whether conditions are independent
or dependent, technical expressions must yield to the real intention apparent from the instrument itself, and
where mutual covenants or acts are to be performed, they will generally be construed to be dependent, unless a
contrary intention appears.[4]
[FN1] U.S.Green v. Dyersburg, 10 F. Cas. 1099, No. 5756 (C.C.W.D. Tenn. 1879).
[FN3] U.S.Green v. Dyersburg, C.C.Tenn., 2 Flip. 477, 10 F.Cas. 1099, No. 5756.
CJS BONDS 56
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CJS BONDS 57 Page 1
11 C.J.S. Bonds 57

Bonds
Karl Oakes, J.D.

1. In General
57. Amount and extent of liability; interest

Bondholders have the legal right only to that for which their contract calls. Whether an award of interest
may be made in an action on a bond is determined by the proper construction of the bond itself.
Bondholders have the legal right only to that for which their contract calls.[1] A statute requiring the giving
of a bond conditioned on the faithful performance of acts and duties enjoined by law on persons engaged in a
particular undertaking does not require that the bond extend to acts and duties not enjoined by law.[2]
The true intent and meaning of a bond are the primary determinants of the extent of liability.[3] The object
of a penalty in a bond is to limit the obligation of the signers.[4] Thus, in the absence of a condition extending
his or her liability, a surety cannot be held liable for more than the penal sum named.[5] The liability of a surety
on a statutory bond cannot be enlarged by implication beyond its terms and its statutory office.[6]
Interest.
The question of whether an award of interest may be made in an action on a bond is, insofar as the right is
based on contract, determined by the proper construction of the bond itself.[7] Interest coupons must be con-
sidered when construing a bond.[8] Such coupons in the hands of bondholders are mere incidents thereto, and
have no greater effect than a stipulation in the bonds for the payment of interest.[9] Interest on the principal
amount found due under a penal bond is allowable, but only from the time when the fact that such amount is due
is brought definitely to the surety's knowledge.[10]
[FN1] U.S.In re Baldwin Locomotive Works, 21 F. Supp. 94 (E.D. Pa. 1937).
[FN2] Mont.American Surety Co. of New York v. Butler, 86 Mont. 584, 284 P. 1011 (1930).

CJS BONDS 57 Page 2
11 C.J.S. Bonds 57
1977).
[FN4] Cal.Pacific Automobile Exch. v. Stansfield, 62 Cal. App. 577, 217 P. 566 (3d Dist. 1923).
[FN5] Pa.Foster v. Passerieux, 37 Pa. Super. 307, 1908 WL 3807 (1908).
[FN6] IowaDallas County v. Perry Nat. Bank of Perry, 205 Iowa 672, 216 N.W. 119 (1927).
Mont.American Surety Co. of New York v. Butler, 86 Mont. 584, 284 P. 1011 (1930).
[FN7] IowaKilmer v. Gallaher, 107 Iowa 676, 78 N.W. 685 (1899).
[FN8] N.Y.Goodjon v. United Bond & Bldg. Corp., 226 A.D. 137, 234 N.Y.S. 522 (4th Dep't 1929).
[FN9] Miss.Mississippi Power & Light Co. v. A.E. Kusterer & Co., 156 Miss. 22, 125 So. 429 (1930)
.
N.Y.Bailey v. Buchanan County, 115 N.Y. 297, 22 N.E. 155 (1889).
[FN10] Conn.Blakeslee Arpaia Chapman, Inc. v. EI Constructors, Inc., 239 Conn. 708, 687 A.2d 506
(1997).
CJS BONDS 57
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CJS BONDS 58 Page 1
11 C.J.S. Bonds 58

Bonds
Karl Oakes, J.D.

2. Bonds of Agents or Employees
58. Generally

The terms of an agency or employment bond, construed in the light of the contract and the character of the
employment, determines the scope of the conditions and the extent of the liability.
The scope and effect of conditions and the extent of liability under a bond covering a contract of agency, or
other employment, depend on the terms of the bond, construed in connection with the contract,[1] and the char-
acter of the agency or employment, and the duties imposed.[2] They will not be extended beyond what it is evid-
ent, from a construction of the bond and contract, was contemplated at the time the bond was executed.[3] Ac-
cordingly, it has been held that the obligation of the bond does not extend to acts of a partnership of which the
agent subsequently becomes a member,[4] unless the employment of the partnership was not induced or recog-
nized by the obligee.[5]
A bond for the faithful performance of the duties of an agent or an employee in a particular line of employ-
ment is to be construed as an undertaking for his or her fidelity and honesty, commensurate with the scope of his
or her duties.[6] A bond conditioned that an agent shall pay over and account for all moneys received by him or
her as agent is not to be construed as an insurance of the company's funds against inevitable accident or theft
without any negligence on the agent's part.[7]
Commencement of liability.
Although an agent's bond is not delivered until after its date, liability thereon accrues by relation as of its
date,[8] and the bond may include within or from its date matters fairly intended as coming within the terms
thereof.[9] However, it has been held that acts of an agent between the date and the delivery of the bond do not
raise a liability thereon,[10] and the bond will not cover matters occurring before the date,[11] although it has
been held that it will cover a liability accruing after its date, even though the transaction out of which the matter
arose had its inception before such date.[12]

CJS BONDS 58 Page 2
11 C.J.S. Bonds 58
[FN1] IowaJewel Tea Co. v. Shepard, 172 Iowa 480, 154 N.W. 755 (1915).
[FN2] Ill.Chicago, B. & Q.R. Co. v. Bartlett, 120 Ill. 603, 11 N.E. 867 (1887).
Ind.Jenkins v. Phillips, 18 Ind. App. 562, 48 N.E. 651 (1897).
[FN3] Okla. National Union Fire Ins. Co. v. McDonald, 1926 OK 847, 120 Okla. 226, 253 P. 273
(1926).
Advances for enlarging business
Mo.New York Life Ins. Co. v. McDearmon, 133 Mo. App. 671, 114 S.W. 57 (1908).
[FN4] Mich.White Sewing-Mach. Co. v. Hines, 61 Mich. 423, 28 N.W. 157 (1886).
[FN5] Vt.Hayden v. Hill, 52 Vt. 259, 1878 WL 7489 (1878).
[FN6] Ind.Tyler v. Old Post Bldg. Ass'n, 87 Ind. 323, 1882 WL 7028 (1882).
[FN7] Ill.Chicago, B. & Q.R. Co. v. Bartlett, 20 Ill. App. 96, 1886 WL 5454 (1st Dist. 1886), aff'd,
120 Ill. 603, 11 N.E. 867 (1887).
Pa.Baltimore & O. R. R. v. Jackson, 1 Sadler 332, 3 A. 100 (Pa. 1886).
[FN8] U.S.Aetna Life Ins. Co. v. American Sur. Co., 34 F. 291 (C.C.D. Conn. 1888).
[FN9] U.S.Mutual Life Ins. Co. v. Wilcox, 17 F. Cas. 1079, No. 9979 (C.C.N.D. Ill. 1878).
[FN10] Mich.Hyatt v. Grover & Baker Sewing-Mach. Co., 41 Mich. 225, 1 N.W. 1037 (1879).
[FN11] N.H.Peerless Cas. Co. v. Howard, 77 N.H. 355, 92 A. 165 (1914).
[FN12] N.Y.Prudential Ins. Co. v. Berger, 16 N.Y.S. 515 (C.P. 1891).
CJS BONDS 58
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CJS BONDS 59 Page 1
11 C.J.S. Bonds 59

Bonds
Karl Oakes, J.D.

59. Nature and extent of duties

The character of the agency or employment, the relations of the parties, the legal responsibility imposed,
and the terms of the contract determine the nature and extent of the duties, original and additional, required un-
der a bond.
The nature and extent of the duties required under the obligation depend primarily on the character of the
agency or employment, the present and past relations of the parties, the degree of responsibility imposed by law,
and the contract, having in view the intention in executing the bond.[1] Where an officer or an agent executes a
bond in general terms for the faithful performance of his or her duties, it extends to and covers all acts done
within the general scope and authority of the officer or agent.[2]
Additional or new duties.

As a general rule, official bonds extend to all such duties as may from time to time be added to the office or
imposed on the officer, provided the new duties are such as can reasonably be held to be within the contempla-
tion and liability of the obligor.[3] However, unless the bond is so conditioned as to cover the particular agency
and duties other than those specified,[4] this general rule does not permit the imposition of such new or addi-
tional duties or such a change thereof, or such an increase of responsibility, that as a result the nature of the ob-
ligation is altered and the liability of the sureties is increased,[5] as where the principal in the bond has been
promoted or appointed to a new and different position,[6] unless the bond provides for such promotion.[7]
Although a bond may not be good as to new duties imposed, it is still good as to the duties lawfully covered
by it.[8] The general rule in this respect is that the bond of an officer or employee of a private corporation for
the faithful performance of his or her duties relates to the office then contemplated, as within the terms of the
contract, and does not extend to a loss occasioned by his or her employment outside the capacity for which the
bond may, by a fair, reasonable and legal interpretation, be held to have been given, although it does extend to a
loss which was not due to such employment, but rather arose out of the conduct of the office which is covered
by the bond, or was caused alone by the officer's nonperformance or wrongful performance of the regular duties
of his or her office.[9]

CJS BONDS 59 Page 2
11 C.J.S. Bonds 59
[FN1] Ill.Chicago, B. & Q.R. Co. v. Bartlett, 120 Ill. 603, 11 N.E. 867 (1887).
[FN2] Neb.Fiala v. Ainsworth, 63 Neb. 1, 88 N.W. 135 (1901).
[FN3] N.Y.Board of Education v. Quick, 99 N.Y. 138, 1 N.E. 533 (1885).
New duties imposed by reason of an increase of business
Mass.Eastern R. Co. v. Loring, 138 Mass. 381, 1885 WL 8811 (1885).
[FN4] Mich.Cumberland Building-Loan Ass'n v. Gibbs, 119 Mich. 318, 78 N.W. 138 (1899).
[FN5] Md.First Nat. Bank of Baltimore v. Gerke, 68 Md. 449, 13 A. 358 (1888).
[FN6] Pa.American District Tel. Co. v. Lennig, 139 Pa. 594, 21 A. 162 (1891).
[FN7] N.Y.Fourth Nat. Bank v. Spinney, 120 N.Y. 560, 24 N.E. 816 (1890).
[FN8] Mo.Home Sav. Bank v. Traube, 75 Mo. 199, 1881 WL 158 (1881).
[FN9] Ky.Garnett v. Farmers' Nat. Bank, 91 Ky. 614, 13 Ky. L. Rptr. 212, 16 S.W. 709 (1891).
Mich.Detroit Sav. Bank v. Zeigler, 49 Mich. 157, 13 N.W. 496 (1882).
CJS BONDS 59
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Karl Oakes, J.D.

60. Duration of liability

Generally, the bond of an agent or employee remains in effect throughout the period of his or her employ-
ment
As a general rule, the duration of a bond to secure the faithful performance of the duties of an office or em-
ployment is coextensive with the duration of such office or employment.[1] The parties may, of course, limit the
period within which liability for the acts of the agent or officer may impose liability under the bond, and liability
therefore endures only during the time so limited.[2]
Until successor appointed.

The fact that an officer appointed or elected for a fixed term is to hold office until his or her successor is
chosen and qualified does not prevent the office from being for a fixed term.[3] Although there is some authority
to the contrary,[4] it is generally held that if, by reason of a condition of the bond or by virtue of statute, an of-
ficer holds over until a successor is elected and has qualified, the liability on the bond does not cease on the ex-
act instant the term of office expires, but continues for a reasonable time for the election and qualification of a
successor.[5] However, it does not cover a default occurring after the term has expired, if a successor is not
chosen within a reasonable time and the principal continues in office without any reappointment or reelection.[6
] It has also been held that such a condition does not cover a reappointment or reelection of the same officer.[7]
[FN1]
Collections made by agent after termination of agency
Okla.National Union Fire Ins. Co. v. McDonald, 1926 OK 847, 120 Okla. 226, 253 P. 273 (1926).
[FN2] Va.Granite Bldg. Co. v. Saville's Adm'r, 101 Va. 217, 43 S.E. 351 (1903).
[FN3] Conn.Welch v. Seymour, 28 Conn. 387, 1859 WL 1289 (1859).

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11 C.J.S. Bonds 60
[FN4] Me.Norridgewock v. Hale, 80 Me. 362, 14 A. 943 (1888).
[FN5] Minn.Danvers Farmers' Elevator Co. v. Johnson, 93 Minn. 323, 101 N.W. 492 (1904).
[FN6] U.S.Harris v. Babbitt, 11 F. Cas. 612, No. 6114 (C.C.W.D. Mo. 1877).
[FN7] N.J. Citizens' Loan Ass'n of City of Newark v. Nugent, 40 N.J.L. 215, 1878 WL 8290 (N.J.
Sup. Ct. 1878).
CJS BONDS 60
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Bonds
Karl Oakes, J.D.

61. Duration of liabilityAs affected by terms for which elected or appointed

If an officer's term of office is prescribed, such bond is generally considered as only for the term for which
the officer has been appointed or elected at the time it is given.
A bond should be restricted by the term of the office or employment so that every new election or appoint-
ment should be considered the choice of a new officer or employee, and a new bond should be taken,[1] and
where an officer gives a bond conditioned for the faithful performance of his or her duties and unlimited as to
time, but his or her term of office is prescribed, such bond is only for the term for which the officer has been ap-
pointed or elected at the time it is given, and there is no liability on the bond for any breach of the condition
happening after the expiration of the term, although the officer may be continued in office under the same or a
new appointment or election.[2] This is so unless the bond is renewed[3] or clearly shows an intention that liab-
ility thereon shall continue during successive terms of office to which the officer may be elected or appointed.[4
] However, the latter rule applies only to a continuous holding of office, as the bond ceases to be in force if there
is an interruption in the principal's holding of the office.[5]
Even where there is language in the condition carrying the liability beyond the time for which the principal
is appointed or elected, it is construed with considerable strictness, and liability on the bond continues only for
such time as is plainly and explicitly therein specified.[6] However, where there is nothing to show that a restric-
tion was intended or that the office is for a fixed term, the bond is not limited in its application to the first year
of the principal's employment but is a continuing one covering his or her entire period of service,[7] even under
a reappointment or reelection.[8]
A bond for the fidelity of one who holds his office during the pleasure of the appointing power covers all
delinquencies until he or she resigns or is removed.[9]
[FN1] Mass. President, etc., of Dedham Bank v. Chickering, 20 Mass. 335, 3 Pick. 335, 1825 WL
1588 (1825).

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11 C.J.S. Bonds 61
[FN2] IowaIda County Sav. Bank v. Seidensticker, 128 Iowa 54, 102 N.W. 821 (1905).
[FN3] N.Y. Grand Lodge of State of New York, Order der Herrmann's Sohne, v. Freifeld, 20 Misc.
276, 45 N.Y.S. 420 (Sup 1897).
[FN4] Ind.Stamets v. Plano Mfg. Co., 40 Ind. App. 620, 82 N.E. 122 (1907).
[FN5] Me.Coombs v. Harford, 99 Me. 426, 59 A. 529 (1904).
[FN6] Mass.O'Brien v. Murphy, 175 Mass. 253, 56 N.E. 283 (1900).
[FN7] Kan.Turbett v. Marty, 122 Kan. 149, 251 P. 182 (1926).
[FN8] Mo.North St. Louis Building & Loan Ass'n v. Obert, 169 Mo. 507, 69 S.W. 1044 (1902).
[FN9] U.S.Westervelt v. Mohrenstecher, 76 F. 118 (C.C.A. 8th Cir. 1896).
CJS BONDS 61
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Bonds
Karl Oakes, J.D.

E. Cancellation, Rescission, and Revocation
Research References
A.L.R. Library
CJS BONDS IV E REF
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Karl Oakes, J.D.

62. Generally

Unless irrevocable, a bond may be canceled or rescinded by the parties.
Except where the character of a bond is such as to be irrevocable,[1] a bond may be canceled, rescinded, or
revoked, following which action the bond is extinguished to all intents and purposes.[2] A bond will be annulled
by the cancellation of a contract which forms a part of the bond, unless the latter is excepted from the operation
thereof.[3] However, a mere agreement between the parties to cancel a bond without an actual cancellation,[4]
or a mere unexecuted testamentary direction for the destruction of the bond,[5] will not have this effect, and a
notice which is not in conformity with the requirements of a provision therefor in the bond will not terminate the
obligation.[6]
A claim of release from a bond due to a promise by the obligee to look only to the land securing the bond
for payment thereof, which land is already mortgaged to the obligee, is not enforceable because of the absence
of supporting consideration.[7]
[FN1] Pa.Appeal of Mack, 68 Pa. 231, 1871 WL 10915 (1871).
[FN2] N.C.Paxton v. Wood, 77 N.C. 11, 1877 WL 2777 (1877).
[FN3] Ala.Moore v. Dial, 3 Stew. 155, 1830 WL 559 (Ala. 1830).
[FN4] Ind.Cammack v. Rupert, 4 Blackf. 153, 1836 WL 1847 (Ind. 1836).
N.H.Barrett v. Barron, 13 N.H. 150, 1842 WL 2110 (1842).
[FN5] Pa.Albert's Ex'rs v. Ziegler's Ex'rs, 29 Pa. 50, 1857 WL 7423 (1857).
[FN6] Ind.McFall v. Howe Sewing Mach. Co., 90 Ind. 148, 1883 WL 5869 (1883).

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11 C.J.S. Bonds 62
[FN7] Pa.Stoer v. Holtz, 104 Pa. Super. 579, 158 A. 611 (1932).
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Karl Oakes, J.D.

63. Effect of fraud, mistake, or negligence; redelivery or surrender of bond

Mistake or fraud in the cancellation of a bond does not extinguish the bond, but continued negligence fol-
lowing notice may prevent later enforcement of the instrument.
Where a bond is surrendered and canceled through mistake or fraud, it may be treated as a valid and subsist-
ing instrument.[1] However, where through negligence, inattention, or ignorance, a party allows his or her bond
to be discharged without claiming a full performance of its conditions, and after full knowledge of the mode in
which the settlement of it was made, such party acquiesces thereto, he or she cannot later treat the bond as sub-
sisting.[2]
Redelivery or surrender of bond to obligor.

Delivery of a bond, with the intention and direction that it be canceled, to the obligor,[3] or a third person,[4
] extinguishes the bond. A surrender of the bond has the same effect, even where no consideration has been giv-
en for such surrender.[5]
[FN1] U.S.U.S. v. Williams, 28 F. Cas. 678, No. 16724 (D. Me. 1830).
Me.Chapman v. Lothrop, 39 Me. 431, 1855 WL 2099 (1855).
[FN2] Me.Chapman v. Lothrop, 39 Me. 431, 1855 WL 2099 (1855).
W.Va.Piercy's Heirs v. Piercy, 5 W. Va. 199, 1872 WL 2880 (1872).

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CJS BONDS V REF Page 1
11 C.J.S. Bonds V Refs.

Bonds
Karl Oakes, J.D.
V. Performance or Breach of Condition
Research References
A.L.R. Library
West's A.L.R. Digest, Bonds 64 , 65 , 103 , 105 to 109 , 113
CJS BONDS V REF
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CJS BONDS V A REF Page 1
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Karl Oakes, J.D.

A. Performance, in General
Research References
A.L.R. Library
West's A.L.R. Digest, Bonds 64 , 65 , 103 , 105
CJS BONDS V A REF
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Karl Oakes, J.D.

64. Generally

Questions relative to the duty and sufficiency of performance of the conditions of bonds depend on the facts
of the particular case.
Questions relative to the duty and sufficiency of performance of the terms of the condition of a bond must
depend on its terms and the facts of the particular case.[1] A proper tender of performance in accordance with
the conditions of the bond may be sufficient to constitute a defense to an action on the bond.[2] However, a
tender of performance after a breach of the condition will not so operate.[3] Moreover, a tender of performance
of an agreement for a bond is no defense to an action on the bond given subsequently to such agreement.[4]
Strict or substantial performance.

According to the strict rule of the common law, conditions were required to be strictly and literally per-
formed in order to avail the obligor as a defense.[5] According to other decisions, the equitable principle that
substance is to be regarded rather than form has found general application, so that a substantial performance of
the condition is generally held to be sufficient to relieve the obligor from liability on the bond.[6] However, the
performance must be real and not a mere sham.[7]
[FN1] Vt.Washburn v. Titus, 10 Vt. 306, 1838 WL 2115 (1838).
Performance bond
Under its own terms, a performance bond remained in full force and effect until the principal fully per-
formed the underlying contract, even though the agreement requiring the principal to obtain a bond had
envisaged a series of temporary bonds covering each phase of the underlying contract.
N.Y.U.W. Marx Inc. v. Mountbatten Surety Co., Inc., 290 A.D.2d 621, 736 N.Y.S.2d 137 (3d Dep't
2002).
[FN2] Conn.Tracy v. Strong, 2 Conn. 659, 1818 WL 39 (1818).

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11 C.J.S. Bonds 64
[FN3] Vt.Boardman v. Keeler, 21 Vt. 77, 1848 WL 3230 (1848).
[FN4] N.C.State Bank v. Littlejohn, 18 N.C. 563, 1 Dev. & Bat. 563, 1836 WL 401 (1836).
[FN5] N.Y.Mounsey v. Drake, 10 Johns. 27, 1813 WL 947 (N.Y. Sup 1813).
[FN6] Cal.Levitsky v. Johnson, 35 Cal. 41, 1868 WL 758 (1868).
[FN7] Pa.Commonwealth v. Doubleday-Hill Electric Co., 243 Pa. 235, 90 A. 67 (1914).
CJS BONDS 64
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Bonds
Karl Oakes, J.D.

65. Election as to performance or manner thereof

Where a bond contains alternative conditions, the obligor may elect which alternative shall be complied
with, unless such election is given to the obligee.
Where there is no alternative condition, the obligor cannot elect to refuse performance and to incur the pen-
alty.[1] Where the conditions of the bond are in the alternative, unless the election is given to the obligee,[2] the
performance of any one of the conditions releases the obligor who may elect which alternative shall be complied
with,[3] and a failure to perform one only does not result in a breach if the other may yet be performed.[4]
However, a bond conditioned in the alternative for the payment of a certain sum of money or of some property,
without designating the value of the latter, requires that if the obligor elects to tender the property it must be
equal in value to the money.[5]
[FN1] R.I.Town of Middletown v. Newport Hospital, 16 R.I. 319, 15 A. 800 (1888).
[FN2] U.S.U S v. Thompson, 28 F. Cas. 90, No. 16486 (C.C.D. Mass. 1813).
[FN3] U.S.U S v. Thompson, 28 F. Cas. 90, No. 16486 (C.C.D. Mass. 1813).
[FN4] Miss.Shaefer v. Minor, 2 Miss. 218, 1 Howard 218, 1835 WL 1718 (1835).
N.Y.People v. Tilton, 13 Wend. 597, 1835 WL 2559 (N.Y. Sup 1835).
[FN5] N.C.Gray v. Young, 6 N.C. 123, 2 Mur. 123, 1812 WL 89 (1812).
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Bonds
Karl Oakes, J.D.

66. Place of performance

Where a place of performance is specified, compliance in this respect is necessary to complete performance.
Where a place of performance is mentioned in the condition, or the nature of the acts to be done indicates
plainly a particular place, compliance in this respect is necessary to complete performance.[1] Where the place
intended by the parties can clearly be inferred, the obligee has no right to appoint a different place for perform-
ance.[2] Where no place is mentioned, the general rule is that the obligation must be performed to the obligee in
person.[3] However, the obligor does not have to follow the obligee out of the state in order to make a personal
payment but, rather, readiness to pay within the state is sufficient.[4]
Collateral circumstances may be considered to ascertain the place intended by the parties.[5]
A bond given under a decree of court must be performed at the place where the court exercises its jurisdic-
tion.[6]
[FN1] Ind.Hunter v. Brown, 68 Ind. 225, 1879 WL 5846 (1879).
[FN2] N.H.Currier v. Currier, 2 N.H. 75, 1819 WL 485 (1819).
[FN3] N.Y.Hale v. Patton, 60 N.Y. 233, 1875 WL 10642 (1875).
Rule inapplicable to delivery of cumbersome articles
N.H.Currier v. Currier, 2 N.H. 75, 1819 WL 485 (1819).
[FN5] N.H.Currier v. Currier, 2 N.H. 75, 1819 WL 485 (1819).
[FN6] Pa.Irvine v. Barrett, 2 Grant Cas. 73, 1853 WL 6161 (Pa. 1853).

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Karl Oakes, J.D.

67. Time of performance

Where no definite time for performance is fixed, a reasonable time will be implied. Where a definite time is
fixed the obligor will not be released from performance within such time except in case of accident or mistake or
a waiver or extension of the time.
If no time is fixed for performing the condition, the law implies that a reasonable time was intended.[1]
Where a definite time is fixed for performance, time is of the essence of the contract, so that the obligor will not
be released from performance within such time except in case of accident or mistake,[2] or unless the time spe-
cified is waived or extended,[3] provided all the obligors agree thereto,[4] and this may be done by parol.[5] If
no time for ultimate performance is fixed by the waiver, the original contract must be consulted to ascertain
what constitutes a reasonable time.[6]
If a certain period is specified within which an act may be done, the obligor has the whole period in which
to do the act.[7] A bond to be performed on or before a certain day unless a certain condition happens becomes
absolute on the day named unless it has been ascertained before that day that the condition has happened.[8]
Where the act on which the condition rests is to be done between certain dates, the obligation matures at the
close of the day preceding the last named date.[9]
OhioRock v. Monarch Bldg. Co., 87 Ohio St. 244, 100 N.E. 887 (1912).
Tenn.Cock v. Taylor, 2 Tenn. 49, 2 Overt. 49, 1809 WL 216 (Super. Ct. L. & Eq. 1809).
[FN2] N.J.Martin v. Melville, 11 N.J. Eq. 222, 1856 WL 4375 (Ch. 1856).
[FN3] Ind.Shook v. Board of Com'rs of Ripley County, 6 Ind. 461, 1885 WL 4343 (1885).
[FN4] Ind.Cox v. Way, 3 Blackf. 328, 1833 WL 2195 (Ind. 1833).

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11 C.J.S. Bonds 67
[FN5] N.Y.Fleming v. Gilbert, 3 Johns. 528, 1808 WL 1373 (N.Y. Sup 1808).
[FN6] Me.Haynes v. Fuller, 40 Me. 162, 1855 WL 1999 (1855).
[FN7] U.S.People of Porto Rico v. Title Guaranty & Surety Co, 227 U.S. 382, 33 S. Ct. 362, 57 L.
Ed. 561 (1913).
N.H.Blake v. Niles, 13 N.H. 459, 1843 WL 2086 (1843).
[FN8] N.C.Gamble v. Beeson, 50 N.C. 128, 5 Jones 128, 1857 WL 1665 (1857).
[FN9] Tex.Shelton v. Jackson, 20 Tex. Civ. App. 443, 49 S.W. 415 (1899), writ refused.
CJS BONDS 67
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CJS BONDS V B REF Page 1
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Bonds
Karl Oakes, J.D.

B. Payment
Research References
A.L.R. Library
West's A.L.R. Digest, Bonds 65 , 113
CJS BONDS V B REF
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Karl Oakes, J.D.

B. Payment
68. Medium of payment

Payment of a bond may be made in whatever medium the parties agree shall be accepted as payment. Where
accepted as payment, a negotiable instrument will discharge a bond.
Payment of a bond is not necessarily a payment of money, but, rather, is payment which the parties agree
shall be accepted as payment.[1] Thus, where such medium is accepted by the obligee as payment, a payment is
sufficient if made in the payment of obligations or debts of the obligee.[2] The obligee has a right to receive
payment of a bond according to the terms of the obligation.[3] If the obligor is willing to concede to the obligor
the privilege of discharging it in some other prescribed mode, the mode so prescribed must be strictly pursued,
or the obligor will lose the benefit of the privilege and remain bound to discharge the obligation according to its
terms.[4]
If a bond is payable in gold, silver, lawful money, specie, or any specifically named currency, such desig-
nation is of binding force to the extent of the terms of the obligation, subject to statutory provisions and to such
conditions and limitations as are contained in the contract.[5] The privilege of making payment in a particular
currency, in order to be available, must be exercised before the day of maturity so that if not so paid it becomes
a specie debt.[6] Payment in lawful money means such money shall be lawful when payment is actually
made,[7] and even in the absence of such a designation a presumption to that effect arises unless excluded by the
circumstances of the case.[8]
The substitution of a new bond does not extinguish the prior bond.[9] Thus, the obligee may proceed on
either[10] unless the new bond is intended as a payment of the prior bond and is accepted by the obligee as such
payment.[11]
Payment in property.
Payment in property will discharge the debt if accepted in extinguishment thereof,[12] but a verbal agree-
ment to deliver property at a future day in discharge of a bond does not amount to payment.[13]
An assignee of a bond assigned as collateral is not obliged to accept payment in lands.[14]

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11 C.J.S. Bonds 68
Indorsement of payment.
An indorsement of a credit on a bond is prima facie evidence of a payment of the amount indorsed.[15]
However, where the debt is payable in installments an indorsement of the payment of a particular installment is
not evidence of the payment of prior installments.[16]
[FN1] Ga.Brown v. Ayer, 24 Ga. 288, 1858 WL 2197 (1858).
Va.Huffmans v. Walker, 67 Va. 314, 26 Gratt. 314, 1875 WL 5673 (1875).
[FN2] Mich.Spencer v. Perry, 18 Mich. 394, 1869 WL 3609 (1869).
Va.Huffmans v. Walker, 67 Va. 314, 26 Gratt. 314, 1875 WL 5673 (1875).
[FN3] Va.Campbell v. Ranson, 62 Va. 405, 21 Gratt. 405, 1871 WL 4913 (1871).
[FN4] Va.Campbell v. Ranson, 62 Va. 405, 21 Gratt. 405, 1871 WL 4913 (1871).
[FN5] U.S.In re Missouri Pac. R. Co., 7 F. Supp. 1 (E.D. Mo. 1934), aff'd, 294 U.S. 240, 55 S. Ct.
407, 79 L. Ed. 885, 95 A.L.R. 1352 (1935).
[FN6] Ark.Hoys & Pattees v. Tuttle, 8 Ark. 124, 1847 WL 501 (1847).
Pa.Chambers v. Harger, 18 Pa. 15, 1851 WL 5908 (1851).
[FN7] S.C.O'Neil v. McKewn, 1 S.C. 147, 1869 WL 3097 (1869).
[FN8] N.C.White v. Jones, 88 N.C. 166, 1883 WL 2333 (1883).
[FN9] U.S.Masters v. Duval County, 114 Fla. 205, 154 So. 172 (1934).
[FN10] S.C.Bailey v. Wright, 14 S.C.L. 484, 3 McCord 484, 1826 WL 699 (Ct. App. 1826).
[FN11] W.Va.Adler & Roedelheim v. Green, 18 W. Va. 201, 1881 WL 3809 (1881).
[FN12] S.C.Miller v. Kerr, 1 Bailey 4, 17 S.C.L. 4, 1828 WL 762.
[FN13] N.C.Rhodes v. Chesson, 44 N.C. 336, Busb. 336, 1853 WL 1345 (1853).
[FN14] N.Y.Rhinelander v. Barrow, 17 Johns. 538, 1820 WL 1755 (N.Y. 1820).
[FN15] Ala.Clark v. Simmons, 4 Port. 14, 1836 WL 1329 (Ala. 1836).
[FN16] Pa.Sennett v. Johnson, 9 Pa. 335, 1848 WL 5619 (1848).
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Karl Oakes, J.D.

B. Payment
69. Medium of paymentNegotiable paper

Where accepted as payment, a negotiable instrument will discharge a bond.
If accepted as such, a bill of exchange[1] or a note[2] will operate as a payment. It is otherwise, however,
where it does not appear that the note was accepted as a discharge of the debt,[3] or where the note is worthless.[
4] Where a note which is payable in specific articles is assigned as collateral security to a bond and a new con-
tract is made between the assignee and the maker, all parties to the bond are thereby discharged.[5]
[FN1] Ala.Cox v. Robinson, 2 Stew. & P. 91, 1832 WL 557 (Ala. 1832).
N.C.Knott v. Whitfield, 99 N.C. 76, 5 S.E. 664 (1888).
[FN2] IowaSmith v. Jackson, 97 Iowa 112, 66 N.W. 80 (1896).
N.Y.Parsons v. Gaylord, 3 Johns. 463, 1808 WL 1356 (N.Y. Sup 1808).
[FN3] Ind.Price v. Barnes, 7 Ind. App. 1, 31 N.E. 809 (1892), modified on other grounds, 7 Ind. App.
1, 34 N.E. 408 (1893).
Me.Shumway v. Reed, 34 Me. 560, 1852 WL 1638 (1852).
[FN4] Del.Jefferson v. Holland, 1 Del. Ch. 116, 2 Del. Cas. 545, 1820 WL 133 (1820).
[FN5] N.C.Walls v. Cooke, 13 N.C. 183, 2 Dev. 183, 1829 WL 229 (1829).
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Karl Oakes, J.D.

B. Payment
70. Time of payment

While ordinarily a bond or coupon is payable at the time of its maturity, if payable on demand it is payable
on the day of its date.
Independent of any presentation for payment, a bond or coupon is payable at the time of its maturity, that is,
the time fixed for its payment,[1] and should be paid at that time.[2] Where payment made after a breach is ac-
cepted, it operates as a discharge to the extent of such payment.[3]
Where a bond is conditioned for the payment of money on a certain day, the whole debt accrues on the day
specified,[4] even though the bond was given by way of indemnity.[5] A fixed time for payment may be varied
by conditions.[6] The obligor has the whole day on which the bond falls due in which to make payment.[7]
Where a bond in express terms is payable on demand, it is payable on the day of its date,[8] or immedi-
ately,[9] unless there is a plain provision in the bond that it is not to be so paid,[10] or unless the demand is de-
pendent on conditions, as that payment is to be made on demand after a specified time.[11] Under a bond pay-
able on demand, the obligor need not wait until demand is made, but may pay it prior thereto, even though it is
conditioned that a reasonable time after demand shall be given to pay.[12] However, the condition of the bond
may be such that the obligee need not receive payment except at his or her pleasure.[13]
Where no time is specified for the payment of a sum certain the money is due immediately without de-
mand,[14] even though the bond purports to be given for the price of goods to be delivered at a subsequent day.[
15] A provision of the Uniform Commercial Code,[16] that an instrument in which no time for payment is stated
is payable on demand is not applicable to a debenture.[17]
It has been held that bonds for the payment of money and interest coupons thereon are not entitled to days
of grace, under a statute allowing days of grace on negotiable instruments,[18] although there is authority to the
contrary.[19] An offer by the obligor of a bond to pay it before it is due, which is refused by the obligee, has
been held not to change the obligation under the bond.[20]
Extension of time.

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11 C.J.S. Bonds 70
An extension of time for the payment of a bond may validly be made by a parol agreement.[21] Where, after
maturity, an agreement is made between one of the obligors and the obligee as to an extension of time for pay-
ment, in terms more beneficial to the latter, the bond will not be invalidated as to the other obligee because of
such agreement.[22] An acceptance of a payment of part of the obligation may operate as the grant of an exten-
sion of time for the payment of the balance, but such extension would be for a reasonable time only.[23]
[FN1] U.S.U.S. v. Union Pac. R. Co., 11 Ct. Cl. 1, 91 U.S. 72, 23 L. Ed. 224, 1875 WL 17937 (1875)
.
[FN2] Ind.Shook v. Board of Com'rs of Ripley County, 6 Ind. 461, 1885 WL 4343 (1885).
[FN3] N.Y.Toucey v. Schell, 15 Misc. 350, 37 N.Y.S. 879 (Sup 1895).
[FN4] Ala.Hogan's Ex'r v. Calvert, 21 Ala. 194, 1852 WL 120 (1852).
[FN5] Ala.Hogan's Ex'r v. Calvert, 21 Ala. 194, 1852 WL 120 (1852).
N.C.Wellborn v. James, 20 N.C. 375, 3&4 Dev. & Bat. 375, 4 Dev. & Bat. (Orig.Ed.) 234, 1839 WL
536 (1839).
[FN6] S.C.People's Federation Bank v. English, 133 S.C. 129, 129 S.E. 156 (1925).
[FN7] Ark.Zachery v. Brown, 17 Ark. 442, 1856 WL 599 (1856).
[FN8] Conn.Austin v. Burbank, 2 Day 474, 1807 WL 54 (Conn. 1807).
[FN9] Va.Bowman v. McChesney, 63 Va. 609, 22 Gratt. 609, 1872 WL 5230 (1872).
[FN10] Va.Omohundro's Ex'r v. Omohundro, 62 Va. 626, 21 Gratt. 626, 1872 WL 5169 (1872).
[FN11] Va.Boulware v. Newton, 59 Va. 708, 18 Gratt. 708, 1868 WL 2800 (1868).
[FN12] Va.Stover v. Hamilton, 62 Va. 273, 21 Gratt. 273, 1871 WL 4901 (1871).
[FN13] Va.Boulware v. Newton, 59 Va. 708, 18 Gratt. 708, 1868 WL 2800 (1868).
[FN14] Pa.Rhoads v. Reed, 89 Pa. 436, 1879 WL 11466 (1879).
[FN15] N.C.Watson v. Bledsoe, 60 N.C. 249, 1 Win. 253, 1864 WL 1037 (1864).
[FN16] Uniform Commercial Code (U.L.A.) 3-108(a).
[FN17] Ill. Stoerger v. Ivesdale Co-op. Grain Co., 15 Ill. App. 3d 313, 304 N.E.2d 300, 13 U.C.C.
Rep. Serv. 914 (4th Dist. 1973).
[FN18] IowaKilmer v. Gallaher, 116 Iowa 666, 88 N.W. 959 (1902).
Mass.Chaffee v. Middlesex R. Co., 146 Mass. 224, 16 N.E. 34 (1888).

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11 C.J.S. Bonds 70
[FN19] N.Y.Evertson v. Newport Nat. Bank, 66 N.Y. 14, 1876 WL 12193 (1876).
[FN20] Pa.Stoer v. Holtz, 104 Pa. Super. 579, 158 A. 611 (1932).
[FN21] N.J.Van Syckel v. O'Hearn, 50 N.J. Eq. 173, 24 A. 1024 (Ch. 1892).
[FN22] U.S.In re Hutchinson, 12 F. Cas. 1082, No. 6954 (E.D. Va. 1877).
[FN23] Me.Litchfield v. Litchfield, 49 Me. 107, 1861 WL 1731 (1861).
CJS BONDS 70
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Bonds
Karl Oakes, J.D.

B. Payment
71. By or to whom payment made

Payment on behalf of the obligor, even though by a third person, extinguishes a bond. Payment, in order to
discharge the obligor on a bond, must be made to the person entitled thereto.
Where the transaction is intended as a payment on behalf of the obligor, it is immaterial by whom it is
made.[1] Payment need not be made by the obligor personally, a payment made by a third person at his or her
request being sufficient.[2] However, a payment not on behalf of the obligor will not release the obligor from his
or her contractual obligation.[3] A part payment must necessarily be made by the obligor or with his or her priv-
ity; hence an appropriation by the obligee alone, without the obligor's privity, of a set-off in favor of the obligor
cannot be regarded as a payment.[4]
Ordinarily, payment of a bond should be made to the person therein designated as the payee.[5] The obligor
of a negotiable bond has the duty to seek the holder, and if the obligor makes payment to the wrong party, he or
she must suffer the loss.[6] It has been held that a person in possession of a negotiable bond is prima facie the
owner thereof with the right to accept payment in discharge of the same so as to protect the obligor in making a
bona fide payment to him or her.[7] However, there is also authority that the mere possession of a bond is not
such an evidence of property as will justify a payment to the holder, without authority express or implied from
the owner to collect the same,[8] unless the circumstances connected with the possession are sufficient to show
apparent authority to collect and to justify payment.[9]
[FN1] Ky.Judah v. Kentucky Trust Co., 23 Ky. L. Rptr. 1950, 66 S.W. 607 (Ky. 1902).
[FN2] Ala.Simmons v. Walker, 18 Ala. 664, 1851 WL 198 (1851).
[FN3] Ga.Graves v. Campbell, 35 Ga. App. 418, 133 S.E. 267 (1926).
[FN4] N.C.Woodhouse v. Simmons, 73 N.C. 30, 1875 WL 2769 (1875).
[FN5] Minn.Menage v. Newcomb, 33 Minn. 143, 22 N.W. 182 (1885).

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11 C.J.S. Bonds 71
Wis.Eitscheid v. Baker, 112 Wis. 129, 88 N.W. 52 (1901).
[FN6] Neb.Davis v. Polak, 126 Neb. 640, 254 N.W. 246 (1934).
[FN7] IowaKeeney v. Chilis, 4 Greene 416, 1854 WL 187 (Iowa 1854).
[FN8] Ind.Hackleman v. Moat, 4 Blackf. 164, 1836 WL 1833 (Ind. 1836).
N.J.Lawson v. Nicholson, 52 N.J. Eq. 821, 31 A. 386 (Ct. Err. & App. 1895).
Va.Brown v. Taylor's Committee, 73 Va. 135, 32 Gratt. 135, 1879 WL 5395 (1879).
[FN9] N.Y. Williams v. Walker, 2 Sand. Ch. 325, 7 N.Y. Ch. Ann. 611, 1845 WL 4815 (N.Y. Ch.
1845) (N.Y.Ch.).
Va.Brown v. Taylor's Committee, 73 Va. 135, 32 Gratt. 135, 1879 WL 5395 (1879).
CJS BONDS 71
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Bonds
Karl Oakes, J.D.

B. Payment
72. Effect of payment

Actual payment of the full amount of a bond discharges it and, ordinarily, equity will decree its cancella-
tion.
Ordinarily, actual payment of the full amount of a bond discharges it at law, irrespective of an intention to
the contrary,[1] and equity will decree its cancellation,[2] unless justice requires the parties in interest to be re-
strained from alleging the discharge or from insisting on their legal rights.[3] Thus, a payment of the full amount
of the bond by one of several joint obligors will operate as a satisfaction thereof,[4] unless the equities of the
case require that it be kept alive as between the several obligors.[5]
An overpayment by one of several obligors, each bound for himself or herself alone, does not inure to the
benefit of the others.[6]
[FN1] U.S.Virginia Securities Corp. v. Patrick Orchards, 20 F.2d 78 (C.C.A. 4th Cir. 1927).
[FN2] Ky.Mershon v. Bank of Commonwealth, 29 Ky. 438, 6 J.J. Marsh. 438, 1831 WL 2335 (1831).
[FN3] Pa.McCormick's Adm'r v. Irwin, 35 Pa. 111, 1860 WL 8165 (1860).
[FN4] Md.Carroll v. Bowie, 7 Gill 34, 1848 WL 2106 (Md. 1848).
Tenn.State ex rel. Terry v. Blakemore, 54 Tenn. 638, 7 Heisk. 638, 1872 WL 3813 (1872).
[FN5] Pa.McCormick's Adm'r v. Irwin, 35 Pa. 111, 1860 WL 8165 (1860).
[FN6] Me.Pettingill v. Pettingill, 64 Me. 350, 1875 WL 4050 (1875).
CJS BONDS 72

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Bonds
Karl Oakes, J.D.

C. Excuse, Waiver, Discharge or Release
Research References
A.L.R. Library
CJS BONDS V C REF
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Bonds
Karl Oakes, J.D.

73. Impossibility as excusing nonperformance

The obligor's nonperformance is excused by the law whenever, for any reason other than the act of the ob-
ligor himself, performance becomes impossible.
The obligor may be released from liability otherwise than by performance of the conditions, where nonper-
formance is excused by the law, and that is whenever, for any reason other than the act of the obligor himself,
performance becomes impossible.[1] At common law, if the condition of a bond is impossible at the time of its
execution, the bond is single, and it is regarded as the unconditional undertaking of the obligor to pay the pen-
alty,[2] and where it is possible at the time of execution, but subsequently becomes impossible, the obligation is
saved, and the performance of the condition is excused.[3]
Since where the conditions of a bond clearly require the performance of certain acts, the intent as expressed
must control, performance cannot be excused by extrinsic circumstances which might make performance more
difficult than contemplated when the contract was made or which might tend to show an intent other than that
expressed.[4] A contract extending the time of performance is no excuse for nonperformance unless such con-
tract is performed.[5]
Where the condition of the bond relates to the use or possession of a thing and necessarily depends on its
continued existence, then the destruction thereof without fault of the obligor will excuse performance.[6]
Conditions precedent.
Where an act is to be done by the obligee or another before the obligor can be compelled to perform, either
because performance is impossible or because of the contract of the parties, the nonoccurrence of such act is a
good and sufficient excuse for nonperformance on the part of the obligor.[7] This is so unless the obligor by his
or her own act prevents the performance of the condition precedent by the obligee or other proper person, in
which case he or she is bound at once to perform the condition or he is liable as for a breach.[8]
Act of law.
Where the performance of the obligation of a bond becomes impossible by an act of law, the obligation is
discharged and no action will lie against the obligor thereon.[9] However, an act of the court is not always such

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11 C.J.S. Bonds 73
an act of the law.[10]
[FN1] Ind.Webster v. Major, 33 Ind. App. 202, 71 N.E. 176 (1904).
[FN2] Ala.Ward v. Hood, 124 Ala. 570, 27 So. 245 (1900).
[FN3] S.C.Miller v. Nichols, 17 S.C.L. 226, 1 Bail. 226, 1829 WL 721 (Ct. App. 1829).
[FN4] Ala.Meriwether v. Lowndes County, 89 Ala. 362, 7 So. 198 (1890).
[FN5] Me.Washburn v. Mosely, 22 Me. 160, 1842 WL 1273 (1842).
[FN6] Mass.Badlam v. Tucker, 18 Mass. 284, 1 Pick. 284, 1823 WL 1642 (1823).
N.Y.Carpenter v. Stevens, 12 Wend. 589, 1834 WL 3121 (N.Y. Sup 1834).
[FN7] U.S. U.S. v. Four Part Pieces of Woolen Cloth, 25 F. Cas. 1180, No. 15150 (C.C.N.D. N.Y.
1825).
[FN8] Mo.Howell County v. Wheeler, 108 Mo. 294, 18 S.W. 1080 (1892).
[FN9] IowaDaniels & Co. v. Bowe, 25 Iowa 403, 1868 WL 334 (1868).
[FN10] Mo.Olive v. Alter, 14 Mo. 185, 1851 WL 4075 (1851).
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Bonds
Karl Oakes, J.D.

74. Impossibility as excusing nonperformanceAct of obligor or obligee

Generally, where performance is rendered impossible by the obligor's own act, the obligor cannot rely on
such impossibility as an excuse.
Where performance is rendered impossible by the obligor's own act, or the act of some person or agency on
his or her behalf, the obligor cannot be allowed to show this as an excuse.[1] However, the nonperformance of a
condition of a bond may be excused by the default of the obligee, such as by his or her absence, where his or her
presence is necessary for the performance.[2] Nonperformance of a condition may be excused where the obligee
by his act or omission has prevented performance or rendered it impossible,[3] unless such act is consented to by
the obligor[4] or is justified by the latter's default.[5]
[FN1] Wis.Smith v. Smith, 34 Wis. 320, 1874 WL 3323 (1874).
[FN3] Mass.Dwelley v. Dwelley, 143 Mass. 509, 10 N.E. 468 (1887).
[FN4] Mass.Wildes v. Wade, 62 Mass. 579, 8 Cush. 579, 1851 WL 4704 (1851).
[FN5] N.Y.Keene v. Newark Watch Case Material Co., 112 A.D. 7, 98 N.Y.S. 68 (1st Dep't 1906),
aff'd, 188 N.Y. 598, 81 N.E. 1167 (1907).
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Bonds
Karl Oakes, J.D.

75. Impossibility as excusing nonperformanceAct of God; obligor's death or illness

Although there is authority that while an act of God will excuse the nonperformance of a duty created by
law, it will not excuse a duty created by contract, the view has been taken that where the condition annexed to a
bond becomes impossible of performance by an act of God, its performance will be excused.
There is authority that while an act of God will excuse the nonperformance of a duty created by law, it will
not excuse a duty created by contract.[1] However, the view has been taken that where the condition annexed to
a bond becomes impossible of performance by an act of God, its performance will be excused.[2] Where the ob-
ligation is contingent on a condition subsequent which is rendered impossible by the act of God, the obligation is
discharged.[3]
Death[4] or illness[5] of the obligor may excuse performance of the condition of the bond.
Ill.Steele v. Buck, 61 Ill. 343, 1871 WL 8268 (1871).
[FN2] Miss.Irion v. Hume, 50 Miss. 419, 1874 WL 6518 (1874).
N.Y.People v. McCoy, 39 Barb. 73, 1862 WL 4587 (N.Y. Gen. Term 1862).
[FN3] N.J.In re Van Doren, 108 N.J. Eq. 243, 154 A. 613 (Ch. 1931).
[FN4] Mass.Stinson v. Prescott, 81 Mass. 335, 15 Gray 335, 1860 WL 6833 (1860).
N.H.Blake v. Niles, 13 N.H. 459, 1843 WL 2086 (1843).
[FN5] N.Y.People v. Tubbs, 37 N.Y. 586, 1868 WL 6144 (1868).
Pa.Scully v. Kirkpatrick, 79 Pa. 324, 1875 WL 4923 (1875).

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Bonds
Karl Oakes, J.D.

76. Waiver of performance

An obligee may waive performance of the conditions of a bond.
An obligee may waive performance of the conditions of a bond.[1] While the conditions of a bond cannot be
released or waived by a parol executory agreement,[2] after a breach a right of action on the bond may be
waived or released by parol,[3] and performance may be accepted thereafter which will save forfeiture of the
penalty.[4]
Performance of a condition after a breach, although accepted, will not affect the right of the obligee to re-
cover nominal damages and full costs if action has been brought.[5]
Consideration; estoppel.
It has been held that a waiver must be supported either by a consideration or by estoppel to be valid and
binding.[6] However, the view has also been taken that a technical waiver requires neither a consideration nor
any element of estoppel to support it.[7]
[FN1] Conn.Filer v. Bissel, 2 Root 347, 1796 WL 454 (Conn. Super. Ct. 1796).
D.C. Guilford Granite Co. v. Harrison Granite Co., 23 App. D.C. 1, 1903 WL 18658 (App. D.C.
1903).
Md.Franklin Fire Ins. Co. of Philadelphia v. Hamill, 5 Md. 170, 1853 WL 3570 (1853).
[FN2] Ark.Levy v. Very, 12 Ark. 148, 1851 WL 440 (1851).
Me.Haynes v. Fuller, 40 Me. 162, 1855 WL 1999 (1855).
S.C.Perry v. Clymore, 14 S.C.L. 245, 3 McCord 245, 1825 WL 743 (Ct. App. 1825).

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11 C.J.S. Bonds 76
[FN3] Ark.Levy v. Very, 12 Ark. 148, 1851 WL 440 (1851).
[FN4] Mass.Hogins v. Arnold, 32 Mass. 259, 15 Pick. 259, 1834 WL 2639 (1834).
N.J.Martin v. Melville, 11 N.J. Eq. 222, 1856 WL 4375 (Ch. 1856).
[FN5] Mass.Shattuck v. Adams, 136 Mass. 34, 1883 WL 11056 (1883).
N.H.Town of Hudson v. Tenney, 6 N.H. 456, 1833 WL 1323 (1833).
[FN6] D.C.Bieber v. Gans, 24 App. D.C. 517, 1905 WL 17739 (App. D.C. 1905).
[FN7] N.Y.Clark v. West, 193 N.Y. 349, 86 N.E. 1 (1908).
CJS BONDS 76
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Bonds
Karl Oakes, J.D.

77. Discharge or release from performance

A release or discharge may be either express or implied, and the release or discharge of one joint obligor
will ordinarily relieve the other obligors of liability.
A release or discharge from liability to perform may be effected either expressly or in conformity with the
terms of the bond,[1] or it may be implied from one or more circumstances.[2] An agreement between the obli-
gee and a third person will not release the obligor from liability,[3] and a general contractor who has furnished a
payment bond is not relieved from liability thereunder by virtue of having made payment to a subcontractor.[4]
An unauthorized release by an obligee is no defense to a suit on the bond by the beneficial obligee,[5] and a
release by one obligee alone will not affect the rights of the other obligees.[6]
A release of one of several obligors, whether they are bound jointly, or jointly and severally, discharges the
others, and may be pleaded in bar by all.[7] In order to have this effect it must be a technical release.[8] Thus,
where the bond is a joint one the remedy against all is defeated by the discharge of one of the obligors on a
ground not personal to himself or herself.[9]
Second or subsequent bond.

A second or subsequent bond given for a new and different undertaking operates, ipso facto, as a discharge
of the prior parties.[10]
Release in full satisfaction of all claims
N.Y.Rosenthal v. Conditional Purchase Co., Inc., 40 A.D.2d 375, 340 N.Y.S.2d 473 (1st Dep't 1973),
order aff'd, 33 N.Y.2d 983, 353 N.Y.S.2d 740, 309 N.E.2d 138 (1974).

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11 C.J.S. Bonds 77
Marriage of obligee and obligor not abrogating obligations of bond
Ga.Graves v. Campbell, 33 Ga. App. 505, 126 S.E. 854 (1925).
[FN3] Ky.Baylor v. Morrison, 5 Ky. 103, 2 Bibb 103, 1810 WL 660 (1810).
[FN4] Ariz.L. M. White Contracting Co. v. St. Joseph Structural Steel Co., 15 Ariz. App. 260, 488
P.2d 196 (Div. 2 1971).
[FN5] Wis.Eitscheid v. Baker, 112 Wis. 129, 88 N.W. 52 (1901).
[FN6] Ky.Blakey v. Blakey, 32 Ky. 460, 2 Dana 460, 1834 WL 2353 (1834).
[FN7]
Bequest to one obligor
N.J.Pierson v. Berry, 97 A. 275 (N.J. Ch. 1916).
[FN8] N.J.Line v. Nelson, 38 N.J.L. 358, 1876 WL 8418 (N.J. Sup. Ct. 1876).
[FN9] Va.Brown's Adm'r v. Johnson, 54 Va. 644, 13 Gratt. 644, 1857 WL 3467 (1857).
[FN10] Fla.Chippas v. Midland Ins. Co., 456 So. 2d 495 (Fla. Dist. Ct. App. 3d Dist. 1984).
CJS BONDS 77
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Bonds
Karl Oakes, J.D.

D. Breach of Condition
Research References
A.L.R. Library
CJS BONDS V D REF
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Bonds
Karl Oakes, J.D.

78. Generally

A failure to perform substantially a condition in a bond according to its terms may be a breach.
Generally, unless a sufficient excuse or release is established, a failure to perform substantially the condi-
tion of a bond according to its terms is a breach thereof.[1] However, the condition of a bond is prospective and
subjects the obligors to liability only in case of default occurring after the execution of the instrument.[2]
Moreover, a mere technical breach of a condition is not sufficient to sustain a recovery on the bond if no sub-
stantial right is infringed.[3]
A bond conditioned to pay certain debts of the obligee is broken by nonpayment, and the obligee may sue
without first making payment personally.[4] If the bond is a mere indemnity bond, the obligee must show pay-
ment or some loss or damage resulting to him or her by reason of the nonpayment by the obligor.[5]
A failure to perform one of several conditions, if they are not expressed in the alternative, constitutes a
breach.[6] Thus, where the condition requires payment by installments, default in respect of any one installment
constitutes a breach of the bond, and authorizes an action for the penalty.[7]
When a bond provision is both a condition and a promise, the remedies available for its breach vary by
whether the breach is material, and if the breach is material, the promisee may treat the breach as a failure of a
condition which excuses further performance, and thus terminate the contract, or waive the condition and allow
performance to continue.[8] In any event, regardless of whether the breach is material, the promisee can recover
damages.[9]
Anticipatory repudiation.
In the case of an ordinary money contract, such as a bond, consideration has passed and there are no mutual
obligations; thus, the circumstances are generally not appropriate for application of the anticipatory repudiation
rule.[10]
Agent's bond.
Liability on a bond which contains a condition that an agent shall pay over and account for all moneys re-

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11 C.J.S. Bonds 78
ceived by him or her as agent arises where the agent has failed to use reasonable care and diligence.[11] Also,
default is made by the application of money collected under the terms of the bond to the payment of other debts,
even if such debts are due the obligee of the bond, provided of course that he or she is not a party to its misap-
propriations and has no knowledge of it.[12]
[FN1] N.Y.Merrill v. Equitable Surety Co. of New York, 131 Misc. 541, 227 N.Y.S. 266 (Sup 1928).
Compliance with custody decree
N.J.Miles v. Miles, 108 N.J.L. 496, 158 A. 449 (N.J. Ct. Err. & App. 1932).
Obligation to erect building on property
Or.Learned v. Holbrook, 87 Or. 576, 170 P. 530 (1918), aff'd, 87 Or. 576, 171 P. 222 (1918).
[FN2] Colo.Rockford Ins. Co. v. Rogers, 15 Colo. App. 23, 60 P. 956 (1900).
Tex.Sabine Tram Co. v. Bancroft, 39 S.W. 177 (Tex. Civ. App. 1896), writ refused.
[FN3] Cal.Levitsky v. Johnson, 35 Cal. 41, 1868 WL 758 (1868).
[FN4] Ill.Pierce v. Plumb, 74 Ill. 326, 1874 WL 9134 (1874).
Mass.Shattuck v. Adams, 136 Mass. 34, 1883 WL 11056 (1883).
Tex.Browne v. French, 3 Tex. Civ. App. 445, 22 S.W. 581 (1893).
[FN5] Ga.Harvey v. Daniel, 36 Ga. 562, 1867 WL 1551 (1867).
[FN6] Pa.Equitable Trust Co. v. National Surety Co., 214 Pa. 159, 63 A. 699 (1906).
W.Va.Commonwealth v. Fry, 4 W. Va. 721, 1871 WL 2780 (1871).
[FN7] Wis.Carpenter v. Fulmer, 118 Wis. 454, 95 N.W. 403 (1903).
[FN8] Wash.Colorado Structures, Inc. v. Insurance Co. of the West, 125 Wash. App. 907, 106 P.3d
815 (Div. 2 2005), review granted, 155 Wash. 2d 1021, 126 P.3d 1279 (2005) and aff'd, 161 Wash. 2d
577, 167 P.3d 1125 (2007).
[FN9] Wash.Colorado Structures, Inc. v. Insurance Co. of the West, 125 Wash. App. 907, 106 P.3d
815 (Div. 2 2005), review granted, 155 Wash. 2d 1021, 126 P.3d 1279 (2005) and aff'd, 161 Wash. 2d
577, 167 P.3d 1125 (2007).
[FN10]
Executory contracts for purchase and sale of goods distinguished
U.S.First State Bank of Floodwood v. Jubie, 86 F.3d 755 (8th Cir. 1996).

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Sinking fund
A breach of a condition in a bond issue that the issuer pay sufficient monies into a sinking fund from
which to pay the bonds as they mature entitles a holder of a bond to assert repudiation of the contract so
as to demand the face value of the bond.
Ga.Valley View Church of God in Christ, Inc. v. King, 236 Ga. 337, 223 S.E.2d 701 (1976).
[FN11] Ga.Frink v. Southern Exp. Co., 82 Ga. 33, 8 S.E. 862 (1889).
[FN12] Md.American Bonding & Trust Co. of Baltimore City v. Milwaukee Harvester Co., 91 Md.
733, 48 A. 72 (1900).
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Bonds
Karl Oakes, J.D.

79. Nonpayment of interest

The nonpayment of interest, on a bond giving the obligee the option to declare the whole sum due, amounts
to a breach of the condition of the bond unless excused.
Nonpayment of installments of interest due before the bonds mature is not a breach of a condition to pay
bonds at maturity, where no reference is made to the payment of such installments, although they are promised
by the bonds, so that there can be no breach of the condition until the time named for paying the principal ar-
rives.[1] On the other hand, where a bond is conditioned that, on failure to pay any installment of interest when
due or within a stipulated time thereafter, the entire principal sum shall become due at the option of the obligee,
a failure to pay interest operates as a breach of the condition,[2] and the option may be exercised within a reas-
onable time after default.[3] However, if the nonpayment of interest is due to some act of the obligee, there is no
breach of the condition.[4]
A mistake as to the condition may also relieve from forfeiture,[5] and it has also been held that collection of
the penalty will not be permitted, if inequitable.[6] Relief will not, however, be granted from a forfeiture caused
by the negligence or carelessness of the obligor.[7]
[FN1] U.S.U.S. v. Union Pac. R. Co., 11 Ct. Cl. 1, 91 U.S. 72, 23 L. Ed. 224, 1875 WL 17937 (1875)
.
[FN2] N.J.Warwick v. Matlack, 7 N.J.L. 165, 1824 WL 1574 (N.J. 1824).
[FN3] Wis.Berrinkott v. Traphagen, 39 Wis. 219, 1875 WL 6341 (1875).
[FN4] N.J.De Groot v. McCotter, 19 N.J. Eq. 531, 1868 WL 88 (Ct. Err. & App. 1868).
[FN5] N.J.Martin v. Melville, 11 N.J. Eq. 222, 1856 WL 4375 (Ch. 1856).
[FN6] N.Y.Western Bank v. Sherwood, 29 Barb. 383, 1859 WL 7949 (N.Y. Gen. Term 1859).

CJS BONDS 79 Page 2
11 C.J.S. Bonds 79
[FN7] N.J.De Groot v. McCotter, 19 N.J. Eq. 531, 1868 WL 88 (Ct. Err. & App. 1868).
CJS BONDS 79
END OF DOCUMENT

CJS BONDS 80 Page 1
11 C.J.S. Bonds 80

Bonds
Karl Oakes, J.D.

80. Effect of breach

A breach of the condition of a bond makes the bond a liquidated demand for the amount thereof.
A failure to perform the condition of a bond makes the bond a liquidated demand for the amount thereof.[1]
A breach of a condition in a bond issue that the issuer pay sufficient monies into a sinking fund from which to
pay the bonds as they mature entitles a holder of a bond to assert repudiation of the contract so as to demand the
face value of the bond.[2]
It is not necessary in a penal bond expressly to provide that in case of a breach of the condition the entire
bond will become forfeited, for such a result is implied in case of a breach.[3] Even though a bond may be valid
as to only one of the obligors and invalid as to the rest, if the condition is broken by the one as to whom it is val-
id, the entire penalty will be forfeited.[4]
[FN1] Tex.Shelton v. Jackson, 20 Tex. Civ. App. 443, 49 S.W. 415 (1899), writ refused.
[FN2] Ga.Valley View Church of God in Christ, Inc. v. King, 236 Ga. 337, 223 S.E.2d 701 (1976).
[FN3] Conn.Quintard v. Corcoran, 50 Conn. 34, 1882 WL 2056 (1882).
[FN4] Mo.Presbury v. Fisher, 18 Mo. 50, 1853 WL 4455 (1853).
CJS BONDS 80
END OF DOCUMENT

CJS BONDS COR Page 1
11 C.J.S. Bonds Correlation Table

Bonds
Karl Oakes, J.D.
Topic Summary
Correlation Table
Bonds
1995............................................................................ 2008
1................................................................................. DELETED
2................................................................................. 1
2................................................................................. 18
3................................................................................. 1
3................................................................................. 2
4................................................................................. 3
5................................................................................. 4
5................................................................................. 5
6................................................................................. 5
7................................................................................. 6
8................................................................................. 7
8................................................................................. 8
9................................................................................. 9
10............................................................................... 10
11............................................................................... 11
12............................................................................... 12
13............................................................................... 13
13............................................................................... 14
13............................................................................... 15
14............................................................................... 15
14............................................................................... 16
14............................................................................... 17
14............................................................................... 18
15............................................................................... 19
16............................................................................... 20
17............................................................................... 21
18............................................................................... 22
19............................................................................... 23
20............................................................................... 24
21............................................................................... 27

21............................................................................... 28
21............................................................................... 31
21............................................................................... 41
22............................................................................... 29
23............................................................................... 30
24............................................................................... 32
25............................................................................... 33
26............................................................................... 34
27............................................................................... 25
28............................................................................... 26
29............................................................................... 35
30............................................................................... 36
31............................................................................... 37
32............................................................................... 38
32............................................................................... 39
32............................................................................... 40
33............................................................................... 42
33............................................................................... 43
33............................................................................... 45
34............................................................................... 41
35............................................................................... 43
36............................................................................... 42
37............................................................................... 44
38............................................................................... 46
39............................................................................... 1
39............................................................................... 47
40............................................................................... 48
41............................................................................... 49
42............................................................................... 50
43............................................................................... 51
44............................................................................... 52
45............................................................................... 53
46............................................................................... 54
47............................................................................... 55
48............................................................................... 56
49............................................................................... 58
50............................................................................... 59
51............................................................................... 60
51............................................................................... 61
52............................................................................... 57
53............................................................................... 62
54............................................................................... 63
55............................................................................... 64
56............................................................................... 65
57............................................................................... 66

58............................................................................... 67
59............................................................................... 68
59............................................................................... 69
60............................................................................... 70
61............................................................................... 71
62............................................................................... 72
63............................................................................... 73
63............................................................................... 74
63............................................................................... 75
64............................................................................... 76
65............................................................................... 77
66............................................................................... 78
67............................................................................... 79
68............................................................................... 78
68............................................................................... 80
CJS BONDS COR
END OF DOCUMENT

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CJS BONDS SUM Page 1

11 C.J.S. Bonds Summary

Corpus Juris Secundum

CJS BONDS SUM

2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

Corpus Juris Secundum

Topic Summary Correlation Table

A.L.R. Index, Bonds and Undertakings

West's A.L.R. Digest, Bonds 1

Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.

CJS BONDS I REF

2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

Corpus Juris Secundum

Topic Summary References Correlation Table

1. Definition and nature

West's Key Number Digest

West's Key Number Digest, Bonds 1

2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

[FN8] Mo.Burnside v. Wand, 170 Mo. 531, 71 S.W. 337 (1902).

Neb.Rawson v. Taylor, 69 Neb. 473, 95 N.W. 1033 (1903).

[FN9] Mo.Burnside v. Wand, 170 Mo. 531, 71 S.W. 337 (1902).

Mo.Barnes v. Webster, 16 Mo. 258, 1852 WL 4093 (1852).

Mont.Hedderick v. Poutet, 6 Mont. 345, 12 P. 765 (1887).

Bond unsecured by lien

U.S.Eliasen v. Itel Corp., 82 F.3d 731 (7th Cir. 1996).

[FN21] Wyo.Dewey v. Wentland, 2002 WY 2, 38 P.3d 402 (Wyo. 2002).

[FN22] C.J.S., Shipping 221 to 231.

[FN23] C.J.S., Indemnity 1 et seq.

[FN24] C.J.S., Mortgages 1 et seq.

2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

[FN27] C.J.S., Vendor and Purchaser 22, 45.

Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.

2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

Corpus Juris Secundum

Topic Summary References Correlation Table

West's Key Number Digest

West's Key Number Digest, Bonds 1

[FN1] Mont.Russell v. Chicago, B. & Q. Ry. Co., 37 Mont. 1, 94 P. 488 (1908).

[FN2] Mont.Russell v. Chicago, B. & Q. Ry. Co., 37 Mont. 1, 94 P. 488 (1908).

[FN5] N.H.Benton v. Benton, 63 N.H. 289, 1884 WL 10419 (1884).

2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.

2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

Corpus Juris Secundum

Topic Summary References Correlation Table

West's Key Number Digest

West's Key Number Digest, Bonds 1

[FN2] IowaComfort v. Kittle, 81 Iowa 179, 46 N.W. 988 (1890).

OhioState v. Crippen, 1 Ohio St. 399, 1853 WL 42 (1853).

[FN3] Minn.In re Brown's Will, 35 Minn. 307, 29 N.W. 131 (1886).

[FN4] Kan.State v. Price, 88 Kan. 724, 129 P. 940 (1913).

[FN5] Neb.King v. State, 18 Neb. 375, 25 N.W. 519 (1885).

Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.

2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

Corpus Juris Secundum

II. What Law Governs

Topic Summary Correlation Table

A.L.R. Index, Bonds and Undertakings

West's A.L.R. Digest, Bonds 2 , 49 , 75

Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.

CJS BONDS II REF

2010 Thomson Reuters. No Claim to Orig. US Gov. Works.