Nesbitt v. Turner, 155 Pa. 429

Nesbitt v. Turner

155 Pa. 429 | Pa. | 1893

Opinion by

Me. Justice Thompson,

The appellant as assignee of the Plymouth Savings Bank brought this action against appellee upon a bond alleged to have been given by her to it conditioned for the faithful performance of the duties of its cashier, W. W. Dietrick, her brother. In September, 1871, it appears by the minutes of the Savings Bank that the amount of the bond required to be given by its cashier for the faithful performance of his duties was fixed at $20,000. No further action seems to have been taken by its board of directors until June 16, 1873, when the following entry appears upon its minutes: “ The bond of cashier for $20,000,” followed by “ was then signed by Mary Dietrick and Mrs. S. G. Turner.” The words “ was ” and “ then ” were erased and the words “ with proper corrections ” interlined. So that it, as corrected, then read as follows, viz.: “ The bond of the cashier for $20,000 signed by Mary Dietrick and Mrs. S. G. Turner with proper corrections was read by the Vice President and taken in charge by him.” This bond upon which suit has been brought upon examination shows alterations. The words “ 28th February ” are written over an erasure, and the figure “ 3 ” is written over “ 1 ” of the year 1871, and thus it is made to appear as if dated ‘[February 28,1873.” In 1871 the appellee was the wife of S. G. Turner, who died subsequently in 1872. When the bond was offered in evidence by appellant an objection was made to it and sustained, because it showed upon its face alterations, but subsequently, on proof by a subscribing witness, it was admitted. The first assignment of error relates to the action of the court in sustaining the objection in the first instance, but as it was subsequently admitted it would seem hardly necessary to consider this assignment of error: Worrall v. Pile, 132 Pa. 529. As this however is earnestly pressed by appellant it may be proper to say that as the alterations in question cast a suspicion upon the instrument, the burden of proof was upon the appellant to explain them. In Jordan v. Stewart, 23 Pa. 249, it is said: “ But when a contest occurs, and the instrument is offered in evidence, the *437question at once arises, whether the alteration is beneficial to the party offering it; if it be not, as in the instance of a bond or note altered to a less sum, the prima facie presumption is unchanged; if it be, as was the case here, we do not presume a forgery, but we hold the party, offering it in evidence and seeking advantage from it, bound to explain the alteration to the satisfaction of a jury. The initiative and the burden of proof are thrown upon him.” In the case of Hartley v. Corboy, 150 Pa. 28, the words in a promissory note were originally “ four months,” and “ ninety days ” was written over them. Mr. Justice Gkeen in considering the cases upon the subject said: “ In these circumstances the case comes clearly within the operation of all our decisions upon this class of cases, and it is at once manifest that, when the note was offered in evidence without any explanation of the visible and material alterations, it should have been promptly rejected,” and following this he considers the cases upon this subject.

But the appellant contended that in the attestation clause the erasures are noted because the witness wrote under his name February 28, 1878. This date of witnessing does not indicate in any manner a purpose to note erasures or alterations made before execution, and the copy filed not showing evidence of alterations and erasures thus misled the appellee and she filed no affidavit. The learned trial judge therefore under these circumstances was not guilty of error in requiring appellant to make proof of the execution of it.

When this bond was actually signed does not appear by the proofs, but clearly must have been prior to the minute of the bank already referred to. The alteration of the words “ was then signed” and the insertion of the words “ with proper corrections ” indicate that it was signed before that date. As there is no proof upon the subject and as the paper originally bears date in 1871, and as it is not probable that a paper with no signatures should be preserved from 1871 to 1873, there is a reasonable presumption that the paper was signed at the time of the original date of the instrument. But the learned trial judge left if to the jury to find whether the date of the bond had been altered without appellee’s knowledge or consent. By their verdict they have found the date was 1871, and that it was altered without her knowledge or assent.

*438During 1871 the appellee’s husband was alive and this bond then executed by her as a surety was absolutely void. If thus absolutely void, a naked ratification by her after discoverture did not make it binding upon her. If therefore in 1873 when discovert she simply acknowledged her signature, it was not sufficient to make her liable upon it. In Brown v. Bennett, 75 Pa. 423, it was held that the receipt of an installment after discoverture was in fact a redelivery of the instrument, but it was there said that a naked ratification after discoverture would not avail, and that a mere admission of liability might not be sufficient. In Buchanan v. Hazzard, 95 Pa. 243, it was held that a married woman’s deed is absolutely void and that she cannot be estopped by any subsequent act of ratification, and that nothing but a new deed subsequently acknowledged could avail. In Glidden v. Strupler, 52 Pa. 403, it is said: “ The contract to convey being absolutely void because of incapacity, its ratification is equally forbidden unless by deed in the mode prescribed by the statute. No multiplication of deeds (and they are the most solemn acts in pais by which title can be transferred) will serve to ratify the void conveyance, unless made according to the statutory direction. Much less can express ratification by parol or expressions of satisfaction infuse life into that which has no vitality. How, then, is it possible mere acts can be more efficacious that merely indicate the intention to transfer, which the writing has already expressed in terms explicit and emphatic? Acquiescence in, or acknowledgment of the invalid act, cannot be invested with greater virtue or vigor than the deed itself by which the act was done. The policy of the law which denies the capacity to do the act as clearly denies the capacity to confirm it except in the legal mode.”

It is however argued that Jourdan v. Jourdan, 9 S. & R. 268, is an authority for ratification in this case. There the offer was made to prove that, after the death of the 'husband, she, the wife, had delivered the deed, and as she had actually delivered the deed after discoverture it was held to be error not to permit proof of the fact. It is clear that tire scope of the proof was to show an actual delivery of the deed as her deed when she had become discovert. In the present case, while appellee was in the bank and standing behind the coun*439ter she simply acknowledged her signature and nothing more, and therefore the case last referred to cannot apply, as earnestly contended by appellant.

It is contended that on February 28, 1873, the bond was in fact re-executed and that a redelivery of it then took place. If so redelivered with alterations, and if she at the time had no knowledge of them she cannot be held liable. The learned trial judge instructed the jury : “ If you shall find from an inspection of the bond that these alterations were made, then the question arises, were they made with the knowledge and assent of Mrs. Turner, the defendant ? If not made in that way, she would be relieved of her liability on this bond as a surety for her brother.” lie thus left this to them as a question of fact to be determined by them. As the interlineations and erasures were questions of fact for the jury, Heffelfinger v. Shutz, 16 S. & R. 44, they have found by their verdict that they were made without her knowledge or assent, and, if they were so made, clearly she cannot be held to be liable upon this bond: Miller v. Gilleland, 19 Pa. 123. When the principal party modifies his contract, it is fatal to its validity as against the surety whose assent has not been obtained, even if it be for his benefit, or if it do him no harm: Bensinger v. Wren, 100 Pa. 505.

It has been argued that the bond in question was executed with the alterations and erasures, and delivered as such to the bank, and therefore the appellee is liable, but the evidence does not warrant this conclusion. The only witness upon this subject is Mr. Lance, who testified: That he dropped in the bank on February 28, 1873 ; that appellee was in the bank behind the counter; that the cashier was also there ; that the appellee did not sign it then, but that she acknowledged her signature; that the cashier handed him the bond; that he was requested to make the date of his witnessing it. There is no evidence therefore to show that the appellee knew that the date of the bond had been changed, or that any of the alterations had been made. She thus acknowledged her signature only, and the witness put his name to the paper with the date. If that bond, executed in 1871 during coverture and therefore void, was intended by her to be executed, she being discovert, and redelivered to the bank, this evidence does not establish it. The *440learned judge charged the jury: “If you find that it has not been altered, in the manner alleged, if it was really signed not in 1871, but on 28th of February, 1878, you will then determine her liability.” As the question of re-execution and redelivery was thus submitted to the jury, their verdict negatives this contention.

The evidence does not warrant the conclusion that although she signed the bond in 1871 she in fact executed it February 28th, 1873, with a knowledge of the alteration, nor that the obligors retained this bond from 1871 and delivered it to the bank in 1873, with its date rewritten February 28, 1873. The alternative contention that, even if this bond was actually delivered to the bank in 1871, it was redelivered in 1873, the date being changed with her consent and knowledge, is not sustained by the evidence.

It is scarcely necessary to discuss the admission claimed to have been made by counsel for appellee. Its effect would necessarily have been fatal to her defence. It is therefore not possible that with this effect it could have been intended to be made. It would be a harsh rule to hold that the rights of parties may be swept away by admissions of counsel unintentionally made. The learned judge was right therefore in treating the admission as unintentional, and the jury in regarding it in the same light.

Judgment affirmed.