Kinney v. Schmitt — 19 N.Y. Sup. Ct. 521

Majority

p. 521

MARY C. KINNEY, Respondent, v. GEORGE SCHMITT and CHRISTIAN KOEHNE, Appellants.

Headnote

Guaranty — Marilcs in — when filling m of, not a material alteration — when authority to fill in blanks presumed.

Tlie defendants executed tlie following instrument, written upon the back of a lease given by the plaintiff to Francis X. Sehwer : “In consideration of the letting of the premises above mentioned to <rhe above-named Francis X. Sehwer, and of tbe sum of one dollar to me paid by the said party of the first part, toe do hereby covenant and agree to and with the party of the first part above named, and by her legal representatives, that if default shall at any time be made by the said Francis X. Sehwer in the payment of the rent and performance of the covenants above contained on his part to he paid and performed, that we will well and truly pay the said rent, or any arrears thereof,” etc. At the time of its execution inplace of the italics were blanks, which were subsequently filled in by plaintiff.

In an action upon it, the defendants claimed that the insertion of these words constituted a material alteration and rendered the agreement void. Held, that, even without the insertion of these words, the instrument was sufficiently complete to disclose the facts, that it was intended that the defendants should become liable upon it for the payment of the rent and that they subscribed it ‘ for the purpose of assuming that obligation, and that as the filling in of the blanks in no way enlarged or extended it, the additions were not material and the validity of the instrument was not affected thereby.

Semble, that from the intention of the parties and the fact that appropriate spaces were left for the words inserted, and they were simply useful for the purpose of fully expressing what was reasonably clear without them, authority for the plaintiff to fill them would be presumed.

Appeal from a judgment in favor of tbe plaintiff, entered npon a verdict directed by tbe court.

F. G. Salmon, for tbe appellants.

Tbe alterations were alterations in material, particulars, and tbe instrument, when signed by tlie defendants imposed no liability upon tliem. Tbe agreement, under tbe statute of frauds, must be in writing. Tbe writing must, on its face, express a consideration and tbe whole terms of tbe contract. Nothing lacking in these particulars can be supplied by parol no matter what was originally tbe intention of the parties. (Galkens v. Fttlk 1 Abb. Ct. App. Oases, 291; Wright v. Weeks, 25 N. Y.,

p. 522

153 , 159; Dams v. Shields, 26 Wend., 311 ; Wright v. Weeks, 25 N. Y., 160 ; Warn y. Walters, 5 East, 10; Abeel v. BadóUffe, 13 Johns., 297 ; Dodge y. Lean, id., 508 ; Baptist Chwreh y. Bigelow, 16 Wend., 30 ; Merrit v. Glasson, 12 Johns., 102 ; Bogert y. ■ Ogdens, 3 id., 399, 119.)

Chas. Meyer, for the respondent.

The judgment in this case was for the rent unpaid upon a lease given by the plaintiff for the store and basement in the building known as 79 Cedar street. The lease was for one year at the annual rent of $3,500, payable in monthly installments on the first day of each month, which the tenant covenanted well and truly to pay. By the terms of the agreement entered into the tenant, Francis X. Schwer, was to furnish security for the payment of his rent and the performance of his covenants, and for that purpose the defendants executed a guaranty indorsed upon the lease, at the time when it was subscribed by the landlord and the tenant.

The defense relied upon at the trial on behalf of the defendants, who were the sureties, was that the guaranty had been materially altered after its execution. The alterations alleged consisted of the filling up of blank spaces claimed to have been left in the contract of guaranty when it was subscribed by the defendants. Whether they were so filled up or not was a controverted matter of fact upon the trial. But as the court declined to submit that point to the jury and directed a verdict in the plaintiff’s favor, the defendants are entitled to the presumption that the blanks were filled up after they had subscribed the instrument, for under the evidence the jury might have found on that subject in their favor. The agreement which they subscribed and which at the time was indorsed upon the lease was in the following form, except the words printed in italics -:

“ In consideration of the letting of the premises above mentioned to the above-named Wra/neis LL. Sehwer, and the sum of one dollar to me paid by the said party of the first part, we do hereby covenant and agree to and with the party of the first part above named, and Toy her legal representatives, that if default shall at any time be

p. 523

made by tbe said Francis X. Schwer in tbe payment of tbe rents and the performance of tbe covenants above contained, on his part to be paid and performed, that we will well and truly pay tbe said rent, or any arrears thereof, that may remain due unto tbe said party of tbe first part, and, also, all damages that may arise in consequence of tbe non-performance of said covenants, or either of them, without requiring notice of any such default from tbe said party of tbe first part.

Witness oivr band and seal, this twenty^ninth day of Ma/rch, in tbe year of our Lord one thousand eight hundred and —.”

SCHMIDT & KOEHNE. [l. s.]

Witness:

Wm. H. Butler.

They and no others were what was alleged to have been inserted after tbe execution, and because of their insertion it is insisted that tbe court erred in directing a verdict for tbe plaintiff. But without thorn tbe instrument was sufficiently complete to disclose tbe facts that it was intended that tbe defendants should become liable upon it for tbe payment of tbe rent and tbe performance by tbe tenant of tbe covenants contained in tbe lease, and that they subscribed it for tbe purpose of assuming that obligation. And as tbe filling of tbe blanks in no way enlarged or extended it tbe court could very well bold that the additions made were, in no legal sense, material. (People v. Muzzy, 1 Denio, 239 .)

But even if that were otherwise, from tbe intention of tbe parties and tbe facts that appropriate spaces were left for tbe words inserted and they were simply useful for tbe purpose of fully expressing what was reasonably clear- without them, it was to be presumed that tbe plaintiff or her agent might be conceded tbe authority to fill them.

Tbe rule on this subject which has been well established concerning commercial paper, is that it may at delivery be left entirely blank above tbe signature, or in tbe form of an ordinary printed bill or note with tbe material parts in blank, and tbe spaces may be filled in with any date, time of payment, amount, place of payment or payee, provided this be done consistently with tbe legal import or tenor of tbe form signed or indorsed. And to that extent

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it has been, abundantly sustained by the authorities. (Russell v. Langstaffe, Doug., 514; Orick v. Colston, 7 Grat., 189; Douglas v. Scott, 8 Leigh, 43 ; Fullerton v. Sturges, 4 Ohio [N. S.], 529 ; Bank of Com. v. Curry, 2 Dana, 143 ; Huntington v. Bank, 3 Ala., 186 ; Norwich Bk. v. Hyde, 13 Conn., 279 ; Ives v. Bank, etc., 2 Allen, 236 ; Collis v. Emmett, 1 T. & Black., 313; Visher v. Webster, 8 Cal., 109 ; Spiller v. James, 32 Ind., 202 ; Violett v. Patton, 5 Cranch, 142 ; Mitchell v. Culver, 7 Cowen, 336; Michigan Bk. v. Eldred, 9 Wall., 544 .) The authority arises out of the form of the instrument to which the signature of the party has been attached and the object to be accomplished by subscribing it, and no good reason exists for excluding that which the defendants gave from the operation of this rule. By subscribing as they did, and for the object which was at the time understood, they practically authorized the blank spaces to be supplied with the words which the context indicated to be proper. They were so supplied, and after what had transpired the defendants could not, with any legal propriety, be allowed to deny the validity of the instrument subscribed "by them because of its formal completion which was all that, in any view, can be affirmed to have been done. The judgment appealed from should, therefore, be affirmed.

Davis, P. J., and Brady, J., concurred.

Judgment affirmed.