Cross v. State Bank

By the Court, Sebastian, J. The question to be decided here is, whether a paper signed and sealed with blanks, and filled up without, or in violation of authority, from the defendants, in a material point, can be considered as their deed? Whether it was filled up and delivered by Thompson, one of the joint obligees, or by an agent and clerk of the bank, makes no difference in principle under the view 'which is here taken. Were it the case of a promissory note or bill of exchange, there would be no difficulty, and the question would be of easy solution. The rule is well established that the signing a blank paper confers upon the holder an unlimited letter of credit, and that an abuse of the confidence, which it imports, affords no defence to the maker of it. This was partly a rule of policy, founded on the great convenience and facility they afford to commerce, and on the necessity of removing all obstacles to their free and easy circulation, and of inspiring confidence in the value of them as commercial securities. And, while the growing importance and increasing necessities of commerce have made not only these, but also bonds and other sealed instruments, in a great measure, subservient to its purposes; yet we are not to forget the great distinguishing features in their original creation. These originating in a state of things, which has long since ceased, have yet become so fixed and engrafted in the law, that the task of reform must be left to the Legislature, while we declare the law as it. is written. It is true that these sealed and unsealed instruments, for many purposes, have become the same. They both import a consideration; the one, from its commercial character, and the other, from the solemnity of its execution. As securities or evidence of debt, there is nothing now, but the forms of pleading and the statute of limitations to mark the difference between them. These changes in the law have not lessened the dignity of deeds, but have elevated the other to the same grade in importance. Yet the ancient divisions into contracts by parol and under seal, is still recognized, and remains the same. Promissory notes are still known as parol contracts, and the distinction once attempted between ordinary verbal and written contracts has never been established. If unsealeds such contracts, whether written or unwritten, are still preserved in their original class of parol agreements. It was upon this ground that they might be created by parol or verbal authority. For this reason too, we can see no difference between ordinary money bonds and official bonds. The one is as much a deed as the other; and while promissory notes and sealed instruments for many purposes of commerce, have become assimilated, it must be remembered that the forms and solemnities of their execution have never been changed. By the ancient law three things were necessary to constitute a deed — writing, sealing and delivery' — and when executed, it was held absolutely to estop and conclude the party. This conclusiveness arose from the great deliberation and reflection which were supposed to accompany each successive step in the slow process necessary to constitute it a final act and deed. The maxim that no one could bind another by deed, unless by authority under seal, was but a corollary to this principle; for, as the want of either act of deliberation, rendered the deed of no obligation, so when it was done by an attorney, the assent of the obligor, to be bound, should be shown by an act of equal solemnity; otherwise a solemn instrument of high obligation would be made to depend upon all the uncertainty and frailty of parol testimony. 1 Com. 777. The rule requiring the deed to be in writing, seems to imply, that the obligation goes no further than the writing. This appears from Perkins, sec. 118. “If a common person seal an obligation, or any other deed, without any other writing in it, and deliver the same unto a stranger, man or woman, it is nothing worth, notwithstanding the stranger make it to be written, that he who sealed and delivered the same to him, is bound unto him in £20.” There being no sum of money stated in the bond, when it was sealed, defendants were no more bound by the instrument in that shape, than if it had been an entire blank. In this case it would have been unavailable, unless by a re-delivery after the blanks had been filled. The question then is, whether the defendants have authorized any person to fill up the blanks in such a manner as to create an obligation which did not exist before. Does the signing it with blanks, which must be filled up to make it complete, amount to authority by implication, that they may be so filled, and thus bind the party? This would seem to be decided by what is before said from Perkins. That case seemed to imply that the person to whom it was delivered, had authority to fill up the blank with an obligation, yet it was adjudged it could not be done. This same authority is referred to and cited as law in Shep. Touch. 54, and 4 Com. Dig. Fait (A. 1.) The same principle is to be extracted from Roll. R. 39, 40, where a bond being made to C with blanks left for the Christian name and addition of the obligee, which were filled up afterwards with the assent of the parties, it was held that the bond was void. 2 Stark. Ev. 373. So, in general, if blanks be left at the time of sealing and delivery, which are afterwards filled up, the .deed is thereby avoided, for it is no longer the same contract which was sealed and delivered. Ib. 2 Roll. Abr. 29. These cases show that parol authority will not answer for that purpose, even where there is a necessary implication arising from the purpose of the blank to be filled up, as in Facman’s case cited from Roll. Abr. above. These decisions establish the ancient doctrine, and it has been preserved, notwithstanding some inroads which have been made upon it in a series of modern decisions, in its original purity and simplicity. Thus, in Powell vs. Sheriff of Middlesex, 3 Camp. 182, which was upon a bail bond, executed by defendant, who being in a great hurry at the time, left the condition to be filled up, which was done, it was held by Lord Ellenborough, that the bond was void; and in that case he said: <£a man niay render himself liable as a party to a promissory note or bill of exchange, by signing his name on a blank stamp, but there are certain solemnities indispensable to the validity[of deeds. The defendant never did execute a bond with such a condition.” The rule thus laid down in Perkins and Shepherd, has been followed in manv American cases. In 1 Yerger 69, it was held that a bond signed and sealed in blank, with a verbal authority given at the time to fill it up, is void unless re-delivered; and the same principle was again recognized by that court in 1 Yerger 149. In Kentucky the adjudications have re-asserted the doctrine in Lockhart vs. Roberts, 3 Bibb 362, in which it is treated as a familiar and well settled principle; and in Bank of Limestone vs. Pennick, 5 Monroe, the doctrine is again recognized, for which the same authority from Perkins is cited. It has heen so ruled in Virginia, 1 Washington Rep. 73 and 4 Randolph 176. In this last case the court condemned the doctrine, that the signing and delivery of a bond in blank is an implied authority to fill it up. The case of Byeer vs. McClanahan, 6 Gill. & Johns. 250, is full to the same point, and so is 1 Hill S. C. Rep. 267. Should it be supposed there is any difference in principle between a filling up by the obligee after delivery, or by an agent of the obligors before, the case of Davenport vs. Slight, 1 Dev. & Battle Rep. 381, settles the point. There the defendant executed and delivered a bond in blank to an agent, with a verbal authority to fill the blank and deliver it to the obligee, and this was held to be of no obligation, although it was proven that he had subsequently declared, the bond not being present, that he approved the delivery. In that case Ruf-fin, Judge, considered the innovations which had been made upon the old rule, as highly dangerous in their consequences, and as not warranted by sound authority. In the United States vs. Nelson & Myers, 2 Brock. Rep. 68. Chief Justice Marshall reviewed all the decisions militating against the rule as originally established, and held the doctrine as laid down in the foregoing cases to be correct. This was also the case of blanks filled up after signing and sealing, in which the defendants knew what was to be inserted. Upon this the court say “There are certain differences in law between sealed and unsealed instruments, which make it difficult to apply the principles of one species of contract to the other — all unsealed instruments being considered as verbal contracts, they require neither writing .nor delivery. They were not governed by those technical rules which were founded in the necessity of writing and delivery.” In none of the cases which have been cited was any distinction taken or noticed between ordinary money bonds and official, and many of them were cases upon instruments under seal in form of promissory notes. Such were the cases in 3 Bibb, and 5 Monroe; and of the same class is the case of Ayers vs. Harness, Ohio Condensed Reports, 167, which affirmed the principle as settled by the authorities before cited. We regard the principle, therefore, as too well established to admit of doubt as to its correctness. There have been, however, several cases determined, in which qualifications and innovations upon the law as settled by the earlier decisions, have been made. These are all founded upon the cases of Texira vs. Evans, in Anstruther 228, and Markham vs. Gomaston, as reported in Moore 517. The first was upon a bond in which the blank for the name of the payee and the sum were filled up by an agent, who had been entrusted with it in that shape, to obtain a loan of money. The other was the case of a blank left for the Christian name and addition of the obligee, and in both cases the bonds were held good, the obligors having given their consent to the alteration. Upon these decisions were founded Zouch vs. Clay, reported in 1 Ventris 185, and 2 Levinz 35, and Paget vs. Paget, in 2 Ch. Rep. 187. These two last cases establish the principle that an alteration of a bond after delivery in a material part by consent of parties, or the filling up a blank without such consent, will be binding without a redelivery by the obligor. These cases were all decided subsequent to the time that the rule was laid down in Shepherd and Perkins, and previously to Powell vs. Sheriff of Middlesex, 3 Camp. 182, by which they were virtually overruled. These departures from the ancient rule have been followed in 4 Johns. Rep. 59. 6 Cowen 60. 8 Cowen 118. 5 Mass. R. 539. Smith vs. Crooker, 6 Serg. & R. 308. 13 ib. 190, and 17 ib. 438, and 1 Dallas 67. These authorities all proceed upon the ground that the alteration is made either by consent expressed, or by necessary implication; and where the authority has been pursued. None of them adopt the principle applicable to promissory notes, or that the instrument would be binding where the authority is exceeded or abused. Upon the whole, the weight of authority appears to be decidedly in favor of the principles as we have declared them, and notwithstanding the respectability of the decisions militating against the ancient rule, we cannot regard them as successful innovations and exceptions engrafted upon it. They certainly tend to abolish boundaries between sealed and unsealed contracts, and destaoy the original features which marked and distinguished them in their creation. If an exception, however plausible, is once introduced.. wet cannot see where it is to stop, or why all of the solemnities required in the constitution of a deed, may not as well be performed under parol authority, as any one of them. There is no use in preserving the form when the substance is gone. In this conflict of authority ,’we'prefer to follow, rather than unsettle the long established doctrines. As the instructions of the circuit court were unwarranted by the law, the judgment must be reversed, and the cause remanded with instructions to overrule the demurrer to Cross’ plea, and proceed, &c.