Richards v. Day — 50 N.Y. St. Rep. 389

Majority

p. 389

John H. Richards, App'lt, v. Samuel H. Day, Executor, etc., of Elizabeth Davis, Deceased, Resp't.^[1]

(Court of Appeals,

Filed February 7, 1893.)

Headnote

Evidence—Pabol to vabt bond.

In an action against an estate the executor set up as a counterclaim a "bond executed by plaintiff and wife to the deceased, conditioned to pay her the interest during her lifetime, and upon which he claimed there was a certain sum due. On the trial it was shown that plaintiff and his wife went before a justice of the peace to have the bond drawn and executed under a certain agreement, and that at the instance of the justice the parties signed a blank bond, which the justice afterwards filled up, as plaintiff claimed, in a different manner from that agreed upon. Held, that plaintiff, under his reply, simply denying that he sealed, executed and delivered the bond, could show by paroi evidence what the true agreement between the parties was.

Appeal from judgment of the supreme court, general term, fifth department, reversing a judgment dismissing counterclaim of defendant.

The plaintiff commenced this action to recover for services rendered and for money paid for the defendant’s testatrix, Elizabeth Davis. The defendant put in issue the allegations of the complaint and set up as a counterclaim that the plaintiff and his wife executed to Mrs. Davis their joint and several bond in the penal sum of $3,500, conditioned to pay her the sum of $210 on the 6th day of April, 1881, and $175 “ each year thereafter during the natural life of Elizabeth Davis,” but no part of the principal to be paid, and that the interest falling due on April 6th in each of the years 1885, 1887, 1888 and 1889 had not been paid, and he demanded judgment against the plaintiff for these sums with interest. The plaintiff replied to the counterclaim, and, among

p. 390

other defenses, denied “ that he sealed, executed and delivered the bond as set forth in the counterclaim." Mrs. Davis died April 10, 1889, and plaintiff’s wife died before the commencement of this action. At the close of the evidence the defendant’s counsel asked the court to direct a verdict in his favor for the amount due on the bond, and that motion was denied. Plaintiff’s counsel then asked the court to direct a nonsuit in reference to the counterclaim, and that was granted. Thereafter judgment was entered dismissing the plaintiff’s complaint and dismissing the counterclaim. From so much of the judgment as dismissed his counterclaim the defendant appealed to the general term, and there that portion of the judgment was reversed, and a new trial as to the counterclaim was granted. From the order of the general term the plaintiff appealed to this court.

George F. Yeoman, for app’lt ;■

Cassius G Davy, for resp't.

Neither party upon the trial asked to have the evidence as to the counterclaim submitted to the jury, and there is really no dispute about it. Mrs. Eichards, the wife of the plaintiff, was the daughter of the Mrs. Davis, the testatrix, and a paper now appearing as the bond set up in the counterclaim was signed by her and the plaintiff in pursuance of a family arrangement by which Mrs. Davis distributed property among her children and agreed to take from them bonds to secure her support. The plaintiff and his wife and the testatrix went to a justice of the peace for the purpose of having a bond prepared and executed. It was agreed between them that the testatrix should have the interest on the amount of the bond if - she needed it; that if she did not need it, it was not to be called for and that nothing should be due or payable upon the bond after her death; and that such an agreement should be inserted in the conditions of the bond. When the parties called upon the justice he was not prepared to write the bond, and he produced a blank bond and told the plaintiff and his wife to sign it and that he would subsequently fill it up according to the agreement, which was stated to him in the presence of all the parties, and he would deliver the bond. With that understanding the plaintiff and his wife signed the blank bond, and left it with the justice of the peace. He thereafter filled it up as it now appears, binding the obligors absolutely to make the payments on the bond as therein specified during the life of Mrs. Davis. The claim of the defendant is that the plaintiff could not, under his reply simply denying that he sealed, executed and delivered the bond, show by paroi evidence what the true agreement between the parties was, nor what instructions were given to the justice of the peace in reference to filling up and completing the bond, and that the only remedy of the plaintiff, if the bond was not filled up as agreed, was to have it reformed so as to make it conform to the agreement; and the general term upheld this claim¡ holding that under the issue formed by the reply the paroi evidence was inadmissible to contradict or vary the bond, and that if it did not express the true agreement between

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the parties, the plaintiff should have interposed a reply asking for its reformation.

We think the learned general term fell into error. If this had been a complete bond when the plaintiff signed it, although by mistake or fraud it did not express the true agreement between the parties, his sole remedy would have been to procure its reformation, and when an effort was made to enforce the bond against him he could not contradict the "terms thereof by paroi evidence, except by proper allegations in his pleading asking for its reformation. But here the plaintiff did not sign any bond. He signed a blank piece of paper, and it would have been sufficient for him on the trial to prove that he simply signed a blank piece of paper, and then it would have been necessary for the defendant to show that he authorized the blank to be filled up, and how and under what circumstances the authority was given and what the authority was. A party who signs a blank piece of paper cannot be bound to the obligation written therein, unless it can be shown that he gave the person who wrote it authority. Chauncey v. Arnold, 24 N.Y., 330 ; Dutchess & Columbia Co. R. R. Co. v. Mabbett, 58 id., 397 ; Drury v. Foster, 2 Wall., 24 . There might be cases of an estoppel where one who signed a paper in that way would be bound by it. But in this case no estoppel arises, as the action is between one of the original parties and the representative of the other party. So the defendant is not in a position to complain if the bond is given effect according to the true agreement between the parties. Suppose the justice of the peace, instead of inserting payments in this bond as agreed, had inserted therein a conveyance of real estate, or a bond for the absolute payment of the principal of a large sum of money; or, suppose he had signed this blank bond without authorizing any one to fill it up, and some unauthorized person had afterward filled it up as it now appears, in either of these cases would the bond thus filled up and completed in form have been the bond of the plaintiff ? Certainly in neither case could it have been said that the plaintiff executed such a bond.

Here, so far as the bond departed from the agreement of the parties, it was not the bond of the plaintiff. The only authority the justice of the peace had was to insert in this bond the precise agreement of the parties as directed. As he did not do that, this is not, in the form it now appears, the bond of the plaintiff, and under a denial that he executed the bond he may show the circumstances under which he signed his name and what the agreement at the time he signed it was.

We are, therefore, of opinion that the order of the general term should be reversed and the judgment of the trial term affirmed, with costs.

All concur.