(dissenting).—I am unable to agree with all that is said in the foregoing opinion. I fully indorse what is said therein as to the duty of courts to conform their rulings to the condition of things existing at the time the decisions are made, even although such rulings conflict in some degree with the weight of authority upon the subject. I also fully concur in *173what is said about the duty of courts to look at substance rather than form in the construction of contracts of all kinds, including those of sureties in bonds and other written instruments. But I cannot agree with what is said as to the force to be given the allegations in the complaint to the effect that the bond in question was delivered to the officers of the county by the defendants. All that could reasonably be inferred therefrom is that the instrument came into the possession of the county, and that defendants had knowledge of that fact. It should not be inferred from such allegations that there was any consent on the part of the sureties that the bond should be delivered before it had been made complete by the signature of the person named therein as principal.
If only such inference can be drawn from the allegations in the complaint, no question of estoppel as against the sureties or waiver by them of the right to have the bond signed by the principal, can be invoked to aid in determining the rights of the parties. It follows that the rights of the sureties must be adjudicated in the light of the presumption that they signed the instrument with the understanding that it should be signed by the principal before it should be of force against them; and also of the further fact that there was no privity between the sureties and the plaintiff in the action. At the time the sureties signed the instrument, the plaintiff was an entire stranger to the transaction, and for that reason no contract relation was created with it by such signing. It follows that the rights of the pláintiff were dependent entirely upon the statute; and it can maintain no action upon the instrument unless it is such as the statute required.
Did the instrument in question so conform to the requirements of the statute that it should be held to be *174the bond thereby required ? Such statute provides that the contractor should execute the bond with two or moré sureties, and it would seem plain that a bond executed by sureties alone would not come within its terms. But even if a bond executed by another than the contractor as principal with sureties would be in compliance with the statute, it does not follow that an instrument without any principal at all would come within its provisions. The distinctions between bonds and other forms of contracts are so well established that it is not proper for courts to disregard them until authorized so to do by proper legislation. The statute requires that a bond should be given. It follows that an instrument which does not possess the substantial features of a bond does not come within its provisions. One of such essential features is a principal. There can be no bond without a principal to be bound thereby. The instrument under consideration was executed by sureties alone; hence it lacked one of the essential qualities of a bond. It follows that even though the sureties be held to have waived the want of the signature of the principal, the instrument was so lacking in the essentials of a bond that the statute could not be invoked to aid in the assertion of rights thereunder.
But in my opinion no such waiver was shown. There could be no waiver or estoppel by the sureties which could have force in favor of the plaintiff unless the acts or omissions upon which such waiver or estoppel was founded occurred after the plaintiff had furnished the material, and by so doing put itself in privity with the parties to the bond, if one had been given.
In my opinion, the demurrer was also rightfully sustained, because of the misjoinder of causes of action. *175Long, one of the defendants, was not liable upon the bond. If he was liable to the plaintiff at all, it was upon a contract entered into between it and himself, to which the other defendants were strangers. The right of action as against him could only have been upon the contract under which the materials were furnished, and it is clear that the other defendants were strangers to that contract. The claim of appellant in this regard is, that by the execution of the instrument in question the sureties became parties to the contract for the erection of the building. I am unable to see any reason for sustaining this claim. If the county itself was attempting to enforce rights against Long, there might be some reason-for holding that a bond given by him and sureties for the performance of the contract would establish a privity as between the sureties and the county in relation thereto. But in my opinion the claim could not be sustained even in an action of that kind; much less can it be when the action is sought to be maintained by strangers to such contract. The contract between the county and .the one who was to erect the building was distinct and complete before the execution of the instrument in question. With such contract the plaintiff had no connection. The instrument in question was given to the county for the purposes contemplated by the statute, and if an action could be maintained thereon at all, it could only be against those who were parties to it. If the sureties were liable at all they were liable upon the instrument which they signed. The defendant Long not having signed such instrument, could not be made liable thereon. If liable to plaintiff at all, his liability arose out of an entirely different contract. Hence the contention of the defendants that two causes *176of action had been improperly joined was warranted by the facts.
In my opinion the judgment should be affirmed.