Hyperlawhypertext legal database Weisbrod v. Marquardt 8 Abb. N. Cas. 243

← Cases

Weisbrod v. Marquardt

8 Abb. N. Cas. 243 Court City Court of Brooklyn; General Term, English

Delivered by Reynolds, J.

Contents

Majority

p. 243
WEISBROD v. MARQUARDT.
City Court of Brooklyn; General Term,
1879.

Headnote

Appeal.—Justice oe the Peace.—Undertaking.
Where the only signature of either of the sureties to an undertaking on an appeal from a decision of a justice of the peace was that at the end of the jurat by which he swore to his sufficiency as a surety; but their' names were written in the instrument as those of the parties who “undertake,” &c., and they justified upon the same paper and appeared before a notary and acknowledged that they had executed the “foregoing instrument,”— Held, that there was a sufficient signing and execution of the undertaking.
Appeal by plaintiff from a judgment.
The action was brought by Frederick Weisbrod against Lucas Marquardt, Jacob Eschelman and Henry Traub, on an undertaking given by the defendants on an appeal from a decision given by a justice of the peace of the city of Brooklyn in a landlord and tenant proceeding against Henry Traub, for the possession of premises.
The defendants set up the defense that they affixed their names to the paper in the wrong place, or in only one place, to wit, at the foot of an affidavit of justification, and omitted to sign at the foot of the formal clauses of the undertaking proper.
A notary public certified to the acknowledgment of the parties as having executed it.
On the trial it was claimed: first, that it was a question of fact for the jury whether the undertakers put their names to the instrument with the intention of executing it; and second, that by having given the undertaking and had all the legal advantages of it as an undertaking, they were estopped in law, equitably and in common honesty, from denying it.
The learned judge dismissed the complaint on the ground that as a matter of law such an instrument so
p. 244
executed could not be a binding obligation, and plaintiff appealed.
Fisher, Hurd & Yoltz for plaintiff, appellant.
The statutory provisions regulating the form of the undertaking are L. 1849, c. 193, and Code of Pro. . § 356. Defendants are estopped from denying their undertaking (Jarvis v. Sewall, 40 Barb. 449 ; Levi v. Dorn, 28 How. Pr. 217 ): It is not necessary to an equitable estoppel that the party should design to mislead. If his act was calculated to mislead and actually has misled another acting upon it, that is enough (Manufacturers’ & Traders’ Bank v. Hogan, 30 N. Y. 226 ; National Continental Bank v. Bank of Commonwealth, 50 Id. 586; Phillip v. Gallant, 62 Id. 257; Blair v. Wait, 69 Id. 113; Bates v. Mench, 2 Hun, 568 ; Chamberlain v. Applegate, Id. 510; Gopsill v. Decker, 4 Id. 625; Decker v. Judson, 16 N. Y. 439 ; 1 Abb. Nat. Dig. 535, and cases cited as to sureties). The undertaking was executed; no particular form being required (Edwards Prom. Notes, 91; Merchants’ Bank v. Spicer, 6 Wend. 443 ; Reed v. Drake, 7 Id. 345, 346; 3 Parsons Cont. 6 ed. 4-12; Daniels Negotiable Instruments, 58, and cases cited; Bishop Cont. §§ 169-173; 1 Bouv. Inst. 290). What the intent of the parties was in putting their names to the paper is a question of fact for the jury (1 Chitty Cont. 11 Am. ed. 549; 2 Kent Comm. 511. marg. pag.).
I. J. Perry (Dailey & Perry, attorneys) for de-
fendants, respondents :
cited Pollen v. Le Roy, 30 N. Y. 549 ; People v. Zeyst, 23 Id. 140.

If an actual signing of an instrument by writing the name at the end of it, is necessary to constitute an execution of the instrument, then the undertaking in question was not executed; the only signature of either defendant was that at the end of the jurat, by which he swore to his sufficiency as

p. 245
surety. But their names are written in the instrument as those of the parties who undertake, &e. They justify upon the same paper, and appear before a notary, and acknowledged that they have executed the “foregoing instrument.” This is certainly a strong way of giving their assent to the contract contained in it, and there can be very little doubt that they supposed at the time that they had bound themselves by it. If they omitted signing at the end of the undertaking by design, it would certainly look like an intentional deception; in which case they should be estopped from disputing the execution after the paper has answered its purpose by staying the plaintiff’s proceedings.

But we think that what the defendants did amounted to an execution of the paper. Under our statute of frauds, requiring a memorandum in writing to be subscribed, <£c., it has been held sufficient if the names of the parties to be bound appear in the body of the instrument (Davis v. Shields, 24 Wend. 322 ).[1]

This doctrine has generally been applied where the party to be charged wrote the instrument, then writing his own name, but this, we apprehend, is not essential. It has been held that when a trader, who is in the habit of delivering printed bills of parcels, to which his name is prefixed, delivered one containing the quantity and price of the article, it was a good note in writing within the statute of frauds, particularly if it is referred to by a subsequent letter (Sanderson v. Jackson, 3 E. P. 180).

In Schneider v. Norris (2 M. & S. 286), held that a bill of parcels in which the name of the vendor was printed, and that of the vendee written by the vendor, was a sufficient memorandum within the statute of

* Reversed in 26 Wend. 341 . The case in the text is, however, sustained by analogy by Hubbell v. Livingston, 3 Code R. 63, as well as by the other cases cited.

p. 246
frauds, and charged the vendors. Lord Ellenboeough said,, “here there is a sig'ning by the party to be charged, by words recognizing the printed names as much as if he had subscribed his mark to it, which is strictly the meaning of signing; and by that the party has incorporated and avowed the thing to be his, and it is the same as if he had written Norris & Co., with his own hand” (See also, 3 Parsons Cont. 4-10).

In the case before us, the undertaking was to be executed; and conceding that this required that it should be signed, which is undoubtedly the common understanding as to the mode of execution, the foregoing and other authorities show that this is substantially done when the party writes his name in the body of the instrument, or adopted in that connection. This the defendants did most unequivocally by their justification and acknowledgment before the notary. We think, therefore, that the plaintiff should have judgment.

New trial granted, with costs of appeal to appellant, to abide the event.

Neilsom", J.—I concur in this opinion and in the conclusions. The principle involved is well illustrated in Jackson ex dem. Kenyon v. Virgel ( 3 Johns. 540 ), and in Millius v. Shafer ( 3 Den. 60 ), and in the cases there recited.

Cases cited