| Or. | Dec 15, 1876
It is alleged in the complaint that in making said writing, by mistake immediately after the word “concern,” the words “in the sum of ten thousand dollars, payable” to whom it may concern, were omitted, or other apt words expressive of the amount which the parties to said writing attempted and intended to become bound; and the complaint alleges that said defendants intended to insert said words in said instrument, and to have them remain therein at the time of the execution, delivery and filing by tliem; and further alleges that said sureties did justify under oath in the aggregate in the sum of ten thousand dollars. The question presented is: 1. Whether a court of equity can reform this instrument by inserting the penalty. The appellant’s counsel cites 51 Mo., which maintains the proposition that a court of equity may reform a bond by inserting the penalty, but that case did not directly involve that point, as it was not the point in the case, as in that case there, was a blank left unfilled in the bond. The case of Wight v. Harris, 31 Ind., and all the other cases cited, were cases where there was a blank left in the bond, which must have been seen and recognized when the bond was signed. The court held that the blank was filled by the authority of obligors, and the decisions were placed on the ground that the obligors knew that something was to be added.
The writing sought to be reformed in this case has no open blank left to be filled, but is written without a blank opening on its face, but leaving out certain words usually inserted in a bond, and which words so left out are vital to its validity as a bond. It was an attempt to make a bond, but a failure to create such an instrument as much so as it would be a failure to make a promissory note by a writing a promise to pay any sum of money.
The bond, as it is now, is not a binding instrument, rendering the sureties liable for the default of the principal. Courts of equity will enforce written instruments where by the mutual mistake of the parties in a matter of fact the instrument cannot be enforced as the parties intended; but
That is, a court of equity will make a valid contract operate according to the intent of the parties, but will not give validity to that which is void on its face. Contracts can be reformed by courts of equity to carry out the mutual, understanding of the parties, but there must be a contract to reform.
In this case, if there be a contract it is in parol, for the writing set out in complaint is no contract. (Pars. on Cont. 397; Church v. Noble, 24 Ill. 291" court="Ill." date_filed="1860-04-15" href="https://app.midpage.ai/document/church-v-noble-6949963?utm_source=webapp" opinion_id="6949963">24 Ill. 291; Case v. Patton, 5 Ga. 27, 250; Lindley v. Smith, 58 Ill. —; State of Ohio v. Boring, 15 Ohio, 507; Id. 473.)
The court is asked to reform this parol agreement and make it a written contract over the signatures of defendants, and thereby make them obligors to a written instrument which they never signed, for the alleged reason that they intended to sign such an instrument. If the court assumes this authority in this case, it would be a precedent by which the court can be asked to fill up and insert in a promissory note in which no sum of money is agreed to be paid. Such sum as was agreed by parol should be inserted so as to attach liability to a surety. To illustrate: Suppose A. wishes to borrow money of B., and it is agreed by parol that B. will loan A. one thousand dollars on his, A.’s, note, with C. as surety, and A.’s note is attempted to be drawn, but no sum of money is agreed to be paid in said note, and it is signed by B. as principal and C. as surety. It is clear that a court of equity cannot give this void writing validity ,by inserting in it the sum of one thousand dollars, and make it a good note against the surety. If a court of equity can do this It can charge a surety on his parol agreement, which would annul the statute of frauds.
In the case of Preston v. Hill (23 Gratton), the name of the obligor of the bond was blank when the bond was signed by the surety, and the name of the obligee was inserted by
It was the duty of the court to examine and approve the bond. Until that was done it was-not accepted and no liability attached. The county judge is supposed to have understood its contents and decided on its validity and sufficiency, and if he did so examine it and pronounce it a good bond, then it was an error in his judicial judgment, and was an error of law and not of fact.
If the county judge had decided this paper was not a good bond, and still had granted letters of administration to Steger, the same evils would have ensued to the estate that are now complained of, and there would be the same justice in reforming this instrument as now.
But suppose the judge had discovered the invalidity of this instrument and called the attention of the sureties to it, and they had then promised him that if he appointed Steger administrator they would execute a bond good in form, could a court of equity compel them to do it by inserting in this instrument the words asked to be inserted ? Such a principle would not be contended for; for that would be clearly turning the parol promise of the parties into a written contract, and a court of equity has no such power. To reform this instrument would be extending the reformatory powers of a court of equity beyond any precedent that has been mentioned by counsel, and there seems to be much doubt as to the power of a court of equity to reform a bond by filling a blank when the blank was open on the face of the instrument, and must have been known to the obligors when they signed it. And the authorities are not uniform on that subject, and when it has been maintained it has been on the ground that such authority was given by the obligors. In this case no such authority can be implied
We think that the decree of the court below dismissing the bill should be affirmed.