Richards v. . Day

Earl, J. 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. Richards the wife of the plaintiff was the daughter of 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 he due or payable upon the bond after her death; and that such an agreement should he 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 that 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 parol evidence what the trae 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 fitted *187 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 parol evidence was inadmissible to contradict or vary the bond, and that if it did not express the true agreement between the parties the plaintiff should have interposed a reply asking for its reformation. We tliink 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 parol 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. (Chauncy 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 the plaintiff had signed this blank bond without authorizing any one to fill it up, and some unauthorized *188 person had afterward filled it up as it now appears; in either of these eases would the bond thus filled up and completed in form have been the bond of the plaintiff % Certainly in neither case could it 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. Order reversed and judgment affirmed.