Dusenberry v. O'Shiel — 2 N.Y. Super. Ct. 379

Majority

p. 379

Henry O. Dusenberry versus William O’Shiel.

Headnote

In an action of covenant, it appeared that one Pepper hired a house of the plaintiff; and that the defendant agreed to become his surety for the payment of the rent P. executed a covenant under seal for the payment of the rent, and the defendant on the same paper, executed an agreement also, under seal, to be his surety, but there was no witness to the signature of either. Pepper took the paper containing both agreements, for the purpose of delivering them to the plaintiff, who, upon inspection, objected to the form of the execution of the covenant by P., because there was no witness to his signature. P. therefore erased his signature and wrote his name anew, in the presence of a witness, who signed it, and the paper was then delivered by P. to the plaintiff. The defendant was not present at this transaction, nor did he know any thing of it; but being sued upon his guaranty, he contended that the erasure of the signature of P. under the circumstances of the case, discharged him as surety.

Held, that the signing and sealing of the covenant anew by P. was to be considered as an original execution and delivery of it. That the defendant by signing the guaranty on the covenant itself, and entrusting it to P., thereby gave him authority to complete the delivery of both instruments. That there was no alteration in the terms of the contract, whereby the surety could be prejudiced, and that he was therefore bound by it.

The facts of this case sufficiently appear from the opinion of the court, and the preceding marginal abstract. It was an action of covenant for rent, tried before Mr. Justice Hoffman. At the trial of the cause, the plaintiff having shown the circumstances of the transaction, and having proved the handwriting of the defendant,

p. 380

(there being no witness to his actual signature,) the defendant moved for a non-suit upon two grounds first, because the name of Pepper had been erased after that of the defendant was signed and secondly, because the execution of the instrument by the defendant was not legally proved.

The Judge ruled however, upon the first point, that the executing of the instrument, amounted to a mere acknowledgment of it, -for the purpose of having it witnessed, and'that a witness to a sealed instrument was not absolutely necessary, such witness being chiefly useful in proving a delivery of it. That the possession of the instrument by the plaintiff under the circumstances of the case, was sufficient to warrant them in finding that it had been duly delivered.

The defendant having excepted to the ruling of the Judge, the jury found a verdict for the plaintiff.

The defendant now moved to set the verdict aside, and for a new trial.

Mr. Mulock, for the defendant, contended,

that the original instrument was cancelled, and that the erasure of the name of Pepper, by the direction of the plaintiff, and the re-execution of the covenant, without the knowledge or assent of the defendant, discharged him. [He cited 2. T. R. 366. 10th Cokes’ R. 92. 4. J. R. 84. 15 Ib. 593. Cro. Eliz. 626. 3. Dyer 261. b. 6 Mod. Rep. 237.]

Mr. J. Anthon, contra, insisted,

that the act of Pepper, in writing his name anew, in the presence of a witness, was a mere re-acknowledgment of the instrument prior to its delivery. There had, as yet, been no delivery; the signature of the defendant, to that part of the contract which bound him, was tantamount to a power given to Pepper, to bind him by a future legal delivery of the instrument. The act of Pepper was, a part of such delivery, and the charge of the Judge was in all respects, correct. [He cited 4. J. R. 54. 18 Ib. 499.]

This was an action of covenant. It appeared in evidence, that one Pepper hired a house of the plaintiff and that the defendant agreed to become his surety for the payment of the

p. 381

rent. Pepper executed a covenant for the payment of the rent, under his seal, and the defendant also executed, under his seal, an agreement to be surety therefor, which agreement was on the same paper with the covenant of Pepper; but there was no witness to the signature of either. Pepper took the paper, containing both covenants, to the plaintiff, to deliver them to him. The plaintiff objected to the regularity of the execution of the covenant by Pepper, because there was no witness to his signature. He, therefore, erased his signature and wrote his name anew, in the presence of a person who signed it as a witness, and the paper was then delivered by Pepper to the plaintiff. The defendant was not present at this transaction, nor did he know any thing of it. He now contends, that the erasure of the signature ofPepper, under the circumstances of the case, discharged him as surety.

If the covenant between the plaintiff and Pepper had been completed, by the delivery of the deed, and there had been a subsequent erasure of the signature, perhaps the re-execution of if, by Pepper would have created a new contract, to which the defendant would have been no party. But in the present case, the covenant of Pepper, which the defendant guarantied, had never been executed. The plaintiff objected to accept a delivery of the deed, on the ground of a supposed defect in the mode of execution. The signing and sealing of it anew, was then nothing more than an original execution and delivery of the covenant. The defendant, by signing the guaranty on the covenant itself, and entrusting it to Pepper, thereby gave him authority to complete the delivery of both instruments to the plaintiff. There was no alteration in the terms of the contract. The surety, therefore, could not be prejudiced, nor can he say that the covenant is not such as he intended to guaranty.

Motion for anew trial denied.

[W. Mulock, Att’y for the def't.]