5 Vt. 161 | Vt. | 1832
The opinion of the Court was pronounced by
At the .trial in the .Court below, my first impression was in favor of the defendant, and I should have admitted the evidence, had not the case of Hunt vs. Adams been presented. But conceiving at the moment that that .case governed the present, and having no leisure to examine it, the evidence was rejected. If the effect of an inr dorsement .of this kind were to make the indorser a joint promissor ,X could see no distinction between one promissor and the other ; and no reason why one could explain his contract by parole if the other could not. I am now satisfied that the principle of those decisions was misapprehended, and so are my brethren.
The law on this subject may be^ expressed in a few •words. The mere name of a person upon blank paper of itself meafis nothing. It is evidence of no contract and has no legal import. To give it any legal .effe.ct, evidence is necessary of a delivery of the signature and fhe general purpose of that delivery. When however such proof is had, such signature becomes binding upon the party in any way or manner consistent with the purpose of delivery. It is an authority to the holder,to make the particular terms of the contract such as he pleases, provided it falls within the the general scope of the transaction in view. Hence -a blank signature delivered for the purpose of.having a promissory note or bill of exchange written upon the paper, is in effect an indefinite letter of credit. Doug. Rep. 514. But even in this case, the delivery and the
Where, as in this ease, the signature is attached to- an instrument already executed, and to which the signer is not previously a party, the presumption is that the signeir intended to bind himself in some way In respect to the contract: and as he has left the terms of hrs contract indefinite by signing in blank, it is understood, in the absence of proof to be in any way or manner which the holder may elect. It is on this ground that the cases relied on by the plaintiff turn. Were this however a new question, we should have some doubt whether the circumstance of indorsing a note in this manner, instead of signing it did not of itself imply a collateral guarantee instead of a joinf. obligation. The subject however has been viewed otherwise in some of the states, ar i perhaps theirs is the better doctrine. But y^hatew / may be the prima faci% inference from such an indo sement, the question in this case is, whether parole evidf ice i admissible to explain it
From what has been said it is iparent that such evidence is admissible. Nor does th position impugne the doctrine that written contracts ai 3 not to be varied by parole 5 for here is no contract in writing — there is evidence of a contract of some kind, but its particular terms are not given on the paper but are left to be ascertained by parole. In accordance wi.th this view of the subject are all the authorities; and to prove this, we must go no
In Jocelyn vs. Ames, 3 Mass. R. 274, parole proof was admitted; and the Court held that the plaintiff could not rel cover upon the contract which he had written over the' defendant’s indorsement, but that upon the facts proved, he was at liberty to write over it a different contract upon which he might recover, and the plaintiff took judgement by consent. This case shews that parole proof was admissible on both sides.
In Hunt vs. Adams, 6 Mass. R. 358, -there was no question as to parole proof, but the question was what was the .legal inference from the endorsement in the absence of proof. Upon a subsequent' trial of the same case, see 5 Mass. 516; parole evidence was admitted, and it was left i.o -the jury to determine whether the defendant’s undertaking was absolute or conditional. In Carver vs. Warren, 5 Mass. 545, the plaintiff in counting on such an endorsement set forth the making of the note by J. C., and averred, that<! the defendant, there afterwards by his writing under his hand on the back of said note, for value received, promised the plaintiff to pay him the contents of said -note, agreeably to the tenor thereof.” To this the defendant demurred. Parsons, C. J. says, “ If, as has been suggested, the defendant endorses his name as a guarantor, and the present endorsement had been made, without his consent, or any authority from him, he should not have .demurred, but should have pleaded the general issue and on the trial he might have availed himself of this defence.”
In White vs. Howland, 9 Mass. R. 314, parole evidence was introduced and the case was held to fall within the principle of Hunt vs. Adams. Moies vs. Bird, 11 Mass. R. 436, like Hunt vs. Adams, merely decides, that upon the indorsement alone, without proof to explain it, the indor-.sor may be treated as a joint promissor.
Nelson vs. Dubois, 13 John. R. 175, turned also upon parole proof explaining the indorsement.
If it were necessary to go further, we might refer to the cases in D. Chipman’s Rep. 52 & 892, as cited by counsel in support of our decision.
On the whole, we are all of opinion, that the judgement of the County Court is erroneous and must be reversed. case is remanded for trial.
