Knapp v. Maltby

13 Wend. 587 | N.Y. Sup. Ct. | 1835

By the Court,

Sutherland, J.

From the testimony of the witness to the bond, and who made the alleged alteration in it, the inference is very strong that the words inserted and interlined by him did not change the legal effect or character of the instrument. He thinks the words were may, or can, or assign. The instrument is in the hands of the defendant, who refused to exhibit it to the witness ; and as he did not produce it on the trial, the presumption against the materiality of the alteration is very much strengthened. But admitting it to have been material, the witness by whom it was made had competent authority for that purpose. The plaintiff was to give security for the payment of the rent, to be approved of by one Helme. He, together with a surety, executed a bond for that purpose, and delivered it to Robinson, as their agent, with verbal directions and authority to submit it to Mr. Helme ; and if he thought any alterations or additions necessary, to make them. Upon his suggestion, the words mentioned were added before the instrument was delivered. It falls within the principle of the cases, in which it has been held that a bond, executed in blank as to a material part, with parol authority to fill up the blank and deliver it, is good. In Texira v .Evans, 1 Anst. 228,cited by Wilson, J., a bond executed in blank, as to obligee and amount, was delivered to an agent to raise money upon, with parol authority to fill up the blanks' with the name of the lender and the sum, and was heldgood. So in Ex parte Decker, 6 Cowen, 60 and Ex parte Kerwin, Cowen, 118, appeal bonds executed in blank, with parol authority to an agent to fill them up and deliver the bonds, were held valid. Vide Woolley v. Constant 4 Johns. R. 58, where several of the old cases upon the subject are referred to by Judge Thompson. These cases do not conflict with those in which it has been held that the authority to execute a deed must be under seal. Comyn’s Dig., tit. Attorney, C. 5, 1 Wendell, 481.11 Com. Law R,251. Hanford v. M’Nair, 8 Wendell, 54. The instrument in this case, and in those referred to, was signed and sealed by the party— not by the agent. The authority was not to execute a deed, but to make certain alterations or additions to it. The instrument was valid. The jury have found that the plaintiff fully performed every thing to bo dono on his part, and the defendant failed to assign the lease and to deliver possession of the premises, according to his covenant; and the evidence upon both these points fully sustains the verdict. Robinson, under a sealed power of attorney, demanded the assignment and possession, which the defendant refused to give. It is immaterial whether it was for want of ability or inclination to do it.

It is a clear case of liquidated damages, if it is in the power of parties to liquidate them. 5 Cowen, 144. 7 id. 307.

Judgment for plaintiff.