George Knapp & Co. v. Wilks

Wood, J., (after stating the facts). Conceding that the blank spaces in the contract were filled in by inserting in the blank for the date the words “Fort Smith, Arkansas, April 30, 1910,” and in the blank space left for the number of copies of the paper the words “one hundred,” and that these insertions were made by Isbell after the contract of guaranty was executed by the appellees, still we are of the opinion that these were immaterial alterations that did not affect the liability of appellees under their contract of guaranty. Under the undisputed evidence, the only object of inserting the date in the contract between Isbell and the appellant was to fix a time when the liability of Isbell and the appellees for the papers furnished should begin. The contract between Isbell and appellant contained this provision: “This contract will be in effect when duly approved.” It was immaterial, under the provisions of the contract, what date the contract bore; for the liability of the appellees would commence, under the provision above quoted, from the time of its approval. The contract, under its terms, took effect from that date. The contract between Isbell and appellant does not show on its face the date when it was approved, nor is there any evidence aliunde as to when it was approved, but the approval of course could not have been before the contract was executed, and in the absence of proof it must be assumed that the contract was approved on the day of its execution. The contract of guaranty was dated April 22, 1910, eight days prior to the date of the contract between Isbell and appellant. Therefore, the liability of appellees is not increased by the insertion of the date in the contract between Isbell and appellant subsequent to the date of the contract of guaranty upon which they are sued. The appellees, under their contract of guaranty, became responsible to the appellant “for the prompt payment by him for all copies of the St. Louis Republic furnished him.” So far as the contract is concerned, the number of papers was not specified, and there is no evidence to show that the number was agreed upon. On the contrary, a blank space was left in the contract between Isbell and appellant to be filled in, according to the undisputed evidence. Therefore, the filling in of the number of copies of the paper to be furnished Isbell by appellant was not an alteration which appellant was not authorized to make. “If a party to an instrument intrusts it to another for use with blanks not filled, such instrument so delivered carried on its face an implied authority to fill up the blanks necessary to perfect the same, and the person to whom the instrument is so intrusted must be deemed the agent .of the party who committed the instrument to his custody.” 12 Cyc. 59. See White-Wilson-Drew Co. v. Egelhoff, 96 Ark. 105. Here the appellees executed the bond in suit, agreeing to be liable to appellant for all the papers it furnished Isbell, and this bond was delivered to the obligee. This was authority for the appellant to insert the number of papers furnished in the contract between it and Isbell. See Inhabitants of South Berwick v. Huntress, 53 Me. 89, 87 Am. Dec. 539. The uncontradieted evidence showed that appellees knew when they executed the bond in suit that there were blanks in the contract between Isbell and appellant to be filled by the appellant. The filling in of these blanks therefore did not relieve the appellees of liability on their contract. If Isbell, by making false representations to appellees, perpetrated a fraud upon them which induced them to sign the instrument in suit, the appellant was in no manner responsible for that fraud, for there is nothing to show that appellant at the time it entered into the contract with Isbell to furnish the papers had knowledge of the facts which appellees claim constituted a fraud upon them. Appellant was innocent in the transaction, and it approved the contract of guaranty in suit and acted upon it in good faith. The appellees, by signing the instrument of guaranty, enabled Isbell to procure the papers from appellant under his contract. The appellees therefore are not in a position to defeat appellant’s claim by a charge of fraud. They are estopped from setting up any charge as against the claim of appellant. “It is no defense to an action upon a bond that the sureties were ignorant as to the extent of the obligation assumed or were misled by the principal in reference thereto, in the absence of proof that the obligee was a party to the fraud.” Western N. Y. Life Ins. Co. v. Clinton, 66 N. Y. 326; Powers v. Clarke, 28 N. E. 402; 20 Cyc. 1419; Bascom v. Smith, 41 N. E. 130; Lucas v. Owens, 16 N. E. 196; McWilliams v. Mason, 31 N. Y. 294, cited in appellant’s brief. The court should have directed a verdict in favor of the appellant. For the error in refusing to do so, the judgment is reversed, and judgment will be entered here in favor of appellant for $178.17, the amount of its claim, with interest at 6 per cent, per annum from April 25, 1911, the date of the filing of suit.