A hearing was granted by this court after decision by the district court of appeal, first appellate district, division two, for the purpose of construing the contract out of which the obligation of suretyship springs in its entirety and also for the purpose of making a more extended statement of the law and its application to the facts of the instant case. We adopt, however, as the law of the case the following portion of Mr. Justice Nourse’s opinion:

It should be borne in mind that the bond in the instant case is a contract of suretyship and is not a statutory or official bond. Further, it is a joint and several bond as distinguished from a joint obligation only. Being a contract of suretyship it must be construed in accordance with the following provisions of section 2837 of the Civil Code: “In interpreting a contract of suretyship the same rules are to be observed as in the case of other contracts.” The evidence conclusively shows that respondent’s attorney in fact, and its manager, Mr. Hall,'were wholly familiar with the terms and conditions of the contract for the performance of which respondent agreed to indemnify appellant in the event the principal should fail to comply with its covenants. Mr. Robertson, in a conference with C. R. Cuíten, president of the McKenzie Company, and Hewitt Davenport, president of the Pacific Mill & Timber Company, discussed on the same day or on the day prior to its execution the terms of said bond. No intelligent discussion could have been had without a knowledge of the contents of the contract. As a matter of fact, said manager of respondent had asked for and had received from Mr. Davenport a copy of said contract before the delivery of the bond to appellant by Cuíten. The contract plainly provided that the McKenzie Company, party of the first part, “In order to secure said party of the second part [Pacific Mill & Timber Company] in the faithful performance by the party of the first part, of all the terms, conditions and agreements herein to be kept and performed by said party of the first part, under and by virtue of this paragraph ‘ Second, ’ said party of the first part promises and agrees to cause to be made and delivered contemporaneously herewith to said party of the second part, the guarantee of two parties acceptable to said party of the second part, and in the sum of Twelve Thousand ($12,000) Dollars that said party of the first part will keep and perform each and all of the agreements and covenants by it to be kept and performed, as set forth in this paragraph ‘ Second. ’ ”

Paragraph “Second” contains in detail all of the material engagements of the parties. Respondent Massachusetts Bonding & Insurance Company was accepted by mutual consent of all parties in lieu of “the guarantee of two parties” as in said contract provided and no point is made as to the substitution.

It is important to notice that the binding effect of said contract is recognized by the bond as it is expressly provided that a copy of the contract “is or may be attached to said bond and become a part thereof.” It is held in Kurtz v. Forquer, supra,, and by many courts of various jurisdictions that when the principal is under an independent obligation, as in the instant case, to perform the various provisions of a bond, either by separate contract or by operation of law, his execution of the bond is unnecessary. So far as the McKenzie Company’s liability to respondent was concerned it mattered not whether it did or did not sign the bond. Its signature would have added nothing to any legal right which respondent already had, and it was, therefore, in nowise prejudiced or deprived of any remedy by a failure of its principal to sign the bond.

“Where several persons are named in the body of the instrument as parties thereto, it is not necessarily invalid, as against those who have signed it, because others have not signed. Such a result would follow where it appeared on the face of the instrument, or by proof, that the person sought to be charged signed upon the consideration that others named would also sign. (Cavanaugh v. Casselman, 88 Cal. 543 [ 26 Pac. 515 ].) Nothing of the kind, however, appears in the case at bar. The three sureties, who stood on the same footing, did sign the instrument; and it is evident that the signatures of the 'principals, who were already bound by the contract referred to in the bond, were not necessary as a consideration. Moreover, appellants delivered the bond, without the signatures of the principals, to the plaintiffs. We think, therefore, that the sureties were liable, so far as this point is concerned.” (Kurtz v. Forquer, supra.) So here, respondent caused said bond to be issued after its terms had been agreed upon by respondent’s officers, the president and attorney of appellant, and the president of the McKenzie Company. Respondent’s agent expressly promised that the bond would be issued in compliance with the changes agreed upon and that it “would be ready in a little while.” Following this meeting of the parties the bond was executed by respondent and delivered to its principal, who, in turn, delivered it to appellant.

The finding of the trial court that respondent signed said bond but did not deliver it is not supported by the evidence in the case and cannot be sustained as a matter of law. This finding was made on the theory that although the bond did physically pass from respondent through its principal, McKenzie Mill & Lumber Company, to appellant, there was no absolute delivery, but a conditional delivery only.

The testimony as to the execution and delivery of the bond . comes chiefly from Mr. John H. Robertson, the attorney-in-fact of respondent. His testimony is that he executed the bond and handed it to Mr. Cutten, president of the McKenzie Company, at the office of respondent, no others being present but himself and Mr. Cutten. This occurred on the twenty-fourth day of January, 1917. The witness, over the objection of appellant, testified that he did not intend to bind the bonding company unless the instrument was also signed by the principal; that it was his intention that after it. had been signed by the president and secretary of the McKenzie Company under its corporate seal, that it should then be delivered to appellant. He explained that it was the custom of the bonding company to prepare bonds in the office of the company and then sign, seal, and deliver the same to the principal with the request that it also sign and seal the same in the principal’s office by the proper officers. The court interposed this question: “Q. But what is the custom as to delivery? A. I think that is up to the principal. I don’t go around delivering these instruments. I give them to people who apply for them.” (Italics ours.) Witness continuing: “As a general rule the principal either through himself or through some employee comes to the office and makes some arrangement for the bond. Then so far as we can in the office we prepare it, put on the seals and stamps, etc., and then instruct them what to do with it. Then it. is our understanding that the instrument is not complete until signed by the principal. . . . My best recollection is that I told Mr. Cuíten to have that bond signed by himself as president and have its secretary sign it, and have its corporation seal attached; I don’t think I told him to bring it back to me. I do not know that I used the language of telling him to give it to the company; that is what I supposed he would do.” (Italics ours.) The witness also stated that almost invariably all transactions in bond cases to the point of time at which the bond is actually delivered to the obligee are with the principal. Nothing was said to any of appellant’s officers or its attorney that respondent as a condition precedent to the delivery of said bond required its execution by respondent’s principal. It" is not claimed by respondent that he specifically instructed his principal not to deliver the bond until executed by said principal. The furthest that he is willing to go in this direction is to say that it was his intention that the bond should not be delivered by the principal to the obligee unless signed by said principal. He stated that such was his intention and understanding as to delivery. But his understanding or intention was not disclosed or made known to appellant if, indeed, it was to the McKenzie Company. It cannot be claimed that appellant had any knowledge of a secret arrangement or understanding between respondent with its principal, if any existed, as to any of the requirements of the former touching delivery. The bond was delivered by respondent to appellant and continued thereafter to remain in its custody without any objection being made thereto on the ground that the McKenzie Company had not signed the same or on any like ground until after the case was set for trial.

On April 25, 1917, the day on which all the drafts reached maturity, Mr. Robertson was advised by letter written to him by appellant that all drafts drawn by the McKenzie Company had been paid excepting one for the sum of $500. This gave notice beyond question that the draft for $6,500 had been split into lesser amounts. In the same letter a demand was made on the surety for damages suffered by reason of the McKenzie Company having failed to keep its engagements, the exact amount of which was not then ascertainable. A month or six weeks later Mr. Robertson, upon his own suggestion, accompanied Mr. L, D. MacDonald, a representative of appellant, on a visit to the property of the McKenzie Company, situate in Sonoma County, for the purpose of looking over the property and determining what was best to be done to straighten out the situation. The question of the bonding company advancing money to the McKenzie Company as a feasible method of working out of the situation and complying with the contract was considered by respondent. No definite plan was adopted and the matter rested.

No repudiation of the bond had been hinted at by respondent up to this time or for some time thereafter.

We have related the material facts touching the question of delivery so far as they are presented by the record. There is nothing upon the face of the bond, it being joint and several (Kurtz v. Forquer, supra), or in the transaction itself which imposed upon the obligee the duty of inquiring of the surety company whether any conditions had been imposed upon the McKenzie Company before delivery made. The case of Woodman v. Calkins, 13 Mont. 363 [ 40 Am. St. Rep. 449 , 34 Pac. 187 ], presents facts identical with those of the instant case. In that case, as in the present, the principal had failed to sign the bond and the same defense was there made as is made in the instant case, to wit, that the bond was signed by the sureties on the condition and with the understanding that the principal should sign it before it should be delivered; that said sureties never intended nor consented that it should be delivered without the principal’s signature, which did not appear on the bond. The court said the fact that the sureties never intended nor consented that the bond should be delivered without the signature of the principal involves no fact or condition, which, under the law, would have given the sureties any right or remedy for reimbursement which they did not already possess. The opinion concludes: “If the sureties have lost any material legal right by reason of the omission of the principal to sign this undertaking (obligating himself to do as principal what the law obliges him to do without the undertaking) it has not been pointed out or in any manner suggested in this case. It is well known that there are bonds and obligations whereby the liability of both principal and sureties arise from, and is founded upon, the instrument alone, and where the principal could neither be held liable directly to the obligee, nor collaterally as between him and the sureties without his signature, but such is not the case at bar. And we do not perceive how general suggestions of doubts respecting those cases are applicable in deciding this, or will aid in correctly deciding such other cases when they arise.” (See, also, State v. Peck, 53 Me. 284 ; Trustees v. Sheik, 119 Ill. 579 [ 59 Am. Rep. 830 , 8 N. E. 189 ].) The rule of a surety’s liability on failure of the principal to sign is thus stated in 3-2 Cyc., page 45, as follows: “Where a surety signs a note or bond on condition that the principal also signs it, which condition is known to the payee' or obligee, the surety is not liable thereon in case the principal fails to sign. But if the obligee has no notice, actual or constructive, of the condition, the surety is bound, especially if, upon learning of the nonperformance of the condition he does not raise any objection. So where a bond is good without the signature of the principal, and the sureties’ recourse against him is in nowise impaired by his failure to sign, the fact that the sureties signed the bond on the express condition that the principal should also sign is no defense to an action thereon.”

Whether or not the answer be regarded as sufficient to raise the issue found on by the trial court to the effect that the draft drawn for the sum of $6,500 in accordance with the contract and which was at the request and for the convenience of respondent’s principal on the following day split into four drafts for the sums of $2,000, $3,500 and two for $500, respectively, equaling the said sum of $6,500, payable at the same time as the original draft, we are satisfied that the evidence does not sustain the finding of the trial court that this change in form materially changed the terms of said agreement to the detriment of respondent. The change in form and urged as a defense produced no material change in the terms of the contract and in nowise could have resulted in detriment to respondent. The fact that an officer of the McKenzie Company, acting within the scope of his employment, but in violation of his duties, misapplied or appropriated to his own use one of the drafts forming an integral part of the whole was no more the proximate result of the act complained of than would have been the appropriation of one of the rolls of coin containing a like sum had the original amount been payable in coin only. It would have been just as easy to have misappropriated the full amount represented by the $6,500 draft or any part thereof as it was to misappropriate one of the divisible parts of said original draft. The obligation for which indemnity was given was not increased by the splitting of the original draft into four parts. It amounted to a mere variance of the form of the contract without changing its substance. To hold otherwise would, under the circumstances of the instant case, be sacrificing substance to form and thereby defeat the main object of the contracting parties, which was to transfer $6,500 to respondent’s principal to be used partly as a working capital so as to enable it to perform its obligations. No claim is made that any officer of the corporation for whose faithful performance of the contract respondent became surety was not the rightful custodian of the draft in its original form or in any form which it might thereafter have assumed.

The point made by respondent that the only acts which the McKenzie Company were required to perform under the contract were to deliver the lumber when ordered and “to place to the credit’’ of the appellant the difference between the amount of the draft and the contract price of the lumber is wholly without merit. The contract discloses a practical working plan. To construe it in such a manner as to exonerate the surety from liability on the theory that the bare placing of the credit to the account of appellant on the books of the McKenzie Company for moneys advanced for materials to be furnished by it would be doing violence to the object of the parties and render the contract meaningless and without purpose.

The judgment is reversed.

Lawlor, J., Waste, J., Kerrigan, J., and Lennon, J., concurred.