Opinion
07-25-1853
RHEA v. GIBSON'S ex'or.
J. W. Sheffey, for the appellant, insisted: B. R. Johnston and Patton, for the appellee,
1. The court grants the plaintiff a new trial of a cause, and the defendant takes an exception in which all the facts proved on the trial are stated. The defendant then moves the court to reconsider its opinion granting a new trial, and the court takes time until the next term to consider thereof; and at the next term refuses the new trial, and renders a judgment on the verdict for the defendant. The court had authority to continue the motion.
2. A paper intended to be a bond is signed in blank as to the sum by a person as surety; and the blank is afterwards filled up in his absence, and without his knowledge and without authority from him. It is not his bond.
This was an action of debt in the Circuit court of Washington county, by Joseph Rhea against the executor of Charles C. Gibson, upon a bond for four hundred and eighty-nine dollars and seven and a half cents, signed by Peter Hickman, Jacob Merchant, Charles C. Gibson and Andrew Gibson. The defendant filed two pleas of payment in part by Hickman who was the principal in the note, and two other pleas of payment in part by his testator. He also filed a plea of non est factum. Upon the trial the jury found a verdict for the defendant on the plea of non est factum, which upon the motion of the plaintiff the court set aside as being contrary to the evidence. And thereupon the defendant filed a bill of exceptions to the opinion of the court, in which it is stated that all the facts on which the jury found their verdict is set out. At the same time the defendant moved the court to reconsider its opinion setting aside the verdict; and the court took time until the next term to consider thereof.
At the next term of the court, the order entered in the cause at the previous term, granting a new trial, was rescinded; and a judgment was entered in pursuance of the verdict. And thereupon the plaintiff filed a bill of exceptions which contains the facts as stated in the bill of exceptions filed at the previous term by the defendant, with the addition that it was admitted on the trial by the defendant's counsel, that the name of Charles C. Gibson subscribed to the bond sued on was in the proper hand writing of said Gibson.
It appears from the facts stated that the bond was written and signed by the parties, with a blank for the sum for which it was to be given. That this blank was afterwards filled up by a third person, in the absence of Charles C. Gibson, and without any direction or authority from him to do it. That Hickman being indebted to Shafer, and Shafer being indebted to Rhea in a less amount, it was agreed between them that Hickman should execute the bond to Rhea for as much as Shafer owed him, and that Shafer's debt to Rhea and Hickman's debt to Shafer should be satisfied for that amount: But it did not appear that Gibson had any knowledge of this arrangement. This bond was some time afterwards presented to Gibson by the agent of Rhea, with a request that he would pay fifty or a hundred dollars on it, when Gibson stated that he did not recollect being bound for Hickman for a cent; though he said that the signature was his hand writing; and the agent might tell Mr. Rhea that he (Gibson) would be down in a few days to see him about it.
There was evidence upon the pleas of payment, that there had been paid to the plaintiff four hundred and sixty dollars, of moneys of Hickman, with the knowledge and concurrence of Gibson, but before the above mentioned application to him; and that these payments were applied by Rhea to another bond of Hickman held by Rhea.
Upon the application of the plaintiff this court granted a supersedeas to the judgment.
J. W. Sheffey, for the appellant, insisted:
1st. That the court had no power at the subsequent term, to rescind the order made at the previous term granting the plaintiff a new trial. And as bearing on this question, he cited Brooke v. Young, 3 Rand. 106; Gordon v. Frazier, 2 Wash. 130; Halley's adm'r v. Baird, 1 Hen. & Munf. 25; Bent v. Patton, 1 Rand. 25; Cogbill v. Cogbill, 2 Hen. & Munf. 467; Field's ex'ors v. Freeland, in note to that case 477.
2d. That the paper was the bond of Gibson. That it is not in this case a question of a fraudulent alteration of a paper, which is the foundation of the doctrine that a bond is invalidated by alteration. 1 Greenleaf's Evi. § 568, 568 a: But the question is whether the filling up of this blank according to the intention of the parties, and the acquiescence in this afterwards by the obligor, binds him. And he referred to Texira v. Evans, cited in 1 Anstr. R. 228; Wiley v. Moor, 17 Serg. & Rawle 438; Knapp v. Maltby, 13 Wend. R. 587; Ex parte Kerwin, 8 Cow. R. 118; Woolley v. Constant, 4 John. R. 56; Commercial Bank Buffalo v. Kortright, 22 Wend. R. 348; Eagleton v. Gutteridge, 11 Mees. & Welsb. 465; Smith v. Crooker, 5 Mass. 538; Stahl v. Berger, 10 Serg. & Rawle 170; Speake v. United States, 9 Cranch R. 28; 11 Mees. & Welsb. note, p. 801.
B. R. Johnston and Patton, for the appellee, upon the first point made by the counsel for the appellant, said, it was simply a question whether the court had power to continue a motion from one term to the next: And upon that question there could be no doubt.
2d. Upon the second question they referred to 1 Shepherd's Touchstone, title Deed, ch. 4, p. 50; 4 Comyn's Dig. title Fait, 261; Hibblewhite v. McMorine, 6 Mees. & Welsb. 200; Pigot's Case, 11 Coke R. 47; Davidson v. Cooper, 13 Mees. & Welsb. 343; Newell v. Mayberry, 3 Leigh 250; Marshall v. Gougler, 10 Serg. & Rawle 168; Hudson v. Revett, 15 Eng. C. L. R. 467; Cleaton v. Chambliss, 6 Rand. 86; Harrison v. Tiernans, 4 Rand. 177; Speake v. United States, 9 Cranch. R. 28.
SAMUELS, J.
This is an action of debt against the executor of Charles C. Gibson on a single bill purporting on its face to have been executed by Peter Hickman, Jacob Merchant, Charles C. Gibson and Andrew Gibson. Issues were made up on several pleas of payment, and on the plea of non est factum. On the trial at October term 1847, the jury found for the defendant on the plea of non est factum, but rendered no verdict on the other issues. The plaintiff moved the court to set aside the verdict as against evidence, and for a new trial; which motion, at that time, was sustained. At a subsequent day of the same term the defendant filed a bill of exceptions, and moved the court to reconsider its judgment setting aside the verdict. The court agreed to reconsider; taking time for that purpose, until the next term: and the cause was continued. At the next term, May 1848, the court rescinded the order of the previous term granting a new trial, and rendered a judgment on the verdict; and another bill of exceptions was taken.
It is made a question here, whether it was competent for the court at the May term 1848 to set aside the order granting the new trial at October term 1847. That order was suspended by the fact that the court agreed to reconsider the propriety of having entered it, and by taking time for such reconsideration. The order granting a new trial was merely interlocutory; the case itself was still under the control of the court; the bill of exceptions put upon the record the facts proven at the trial. If the record shows that the court at October term 1847 should have rendered a judgment for the defendant, and that the order granting a new trial was itself erroneous, the delay from October until May should not prevent the court from entering the proper judgment. I conceive that the question whether the new trial was properly refused is fully before this court.
The verdict of the jury should not be set aside as being against evidence, unless it be plainly so. In this case it was shown that the signature to the single bill, Charles C. Gibson, was in his hand writing; it was not directly shown, however, when or for what purpose or under what circumstances that signature was made. The genuineness of the hand writing afforded prima facie evidence of the execution of the instrument; but such evidence may be rebutted by other evidence; and in this case it is clearly proven that about the time the bond bears date it was blank as to the amount; that this blank was filled with the amount therein by the direction of Hickman and Merchant, in the absence of Gibson, and without his privity or consent; that before filling the blank Gibson had given no authority to do so. It did not appear that Gibson knew until nearly three years after the date of the bond that his name was written to such a paper; but it did appear that the bond was then shown to him and payment of fifty or a hundred dollars thereon requested. That Gibson professed to have no recollection of being bound for Hickman for one cent; that he acknowledged the signature to be his and promised to see Rhea in a short time; that Gibson took some pains to cause Hickman to make payments to Rhea, the application of which was a subject of controversy on the pleas of payment. On this evidence the jury found for the defendant on the plea of non est factum.
There are cases in which it has been decided that signing, sealing and delivering the form of a deed in blanks, with directions for filling the blanks, and filling them accordingly, make the deed valid and binding. In some cases the direction to fill the blank has been implied where it is apparent what must be inserted in the blank. Texira v. Evans, cited 1st Anst. R. 228; Stahl v. Berger, 10 Serg. & Rawle 170; Sigfried v. Levan, 6 Serg. & Rawle 308; Ex parte Kerwin, 8 Cow. R. 118; Smith v. Crooker, 5 Mass. 538; Speake v. The United States, 9 Cranch R. 28. There are other cases which decide that such filling of blanks will not give validity to the deed unless under circumstances which make a new execution thereof. Cleaton v. Chambliss, 6 Rand. 86; Hibblewhite v. McMorine, 6 Mees. & Welsb. 200; The United States v. Myers & Nelson, 2 Brock. R. 64; Harrison v. Tiernans, 4 Rand. 177.
It is not necessary for the disposition of this case to decide which of these conflicting authorities should be followed. The judgment must be sustained if the cases first cited above decide the law correctly, because of the absence of authority, express or implied, to fill the blank. If the second class of cases cited give the rule, the judgment must be sustained, because of the absence of proof of re-execution.
I am of opinion to affirm the judgment.
The other judges concurred in the opinion of Samuels, J.
JUDGMENT AFFIRMED.