Vliet v. Camp

13 Wis. 198 | Wis. | 1860

By the Court,

DixoN, O. J.

We are unable to discover-anything in the nature of a warrant of attorney designed as an authority for the confession and entry of a judgment for ' debt, or the purposes for which it is executed, which renders it more solemn or sacred than other instruments by which the rights and obligations of parties are to be determined, or which distinguishes it from, or takes it out of the operation of those rules which govern the construction and application of written contracts in general. Certainly the common law recognizes no distinction of the kind. Like other written agreements, it mnst be sufficiently full and definite to indicate the intention of the maker. But no particular form of words is required, and no rigid ceremony in or about its execution or delivery is to be observed. It need not be under seal. Any writing signed by the party, the language of which makes the object in view clear and certain, and accurately defines the power delegated, is sufficient. 1 Tidd’s Prac., 546 ; 1 Ohitty’s do., 707 ; 5 Taunt., 264 ; 4 East, 431. The fact that it constitutes the foundation or authority upon which the appearance of the maker is to be entered at the suit of another before a court of justice, and the judgment confessed against him for a specified sum, makes it no more momentous or important to him, and indeed hardly so much so, as if it were a deed or other instrument by which he directly and at once parts with an equal amount of property. The validity of either must depend upon whether it was fairly and honestly obtained; and either maybe set aside for fraud or circumvention. Neither is it influenced by the consideration that it is subsequently to become a part of a judicial record, nor that it has, at the time of investigation, performed its office and become so in fact. These are things which may happen to any instrument. The statute does not affect it either in form or substance, excepting so far as it requires it to be distinct from the bond or contract evidencing the demand for which judgment is to be confessed. It declares that it shall be in some proper instrument, that is, some instrument adapted or suited to carrying out tbe will and intention of tbe maker. To determine wbetber it. be sucb an instrument, we are to look to tbe rules and principles of tbe common law. We cannot, therefore, adopt tbe theory of tbe counsel for tbe respondent, and say that we are to interpret or treat tbe instrument under consideration upon principles different from those which are applied to other instruments in writing.

As relates to tbe alterations which were made in tbe warrant of attorney; after it came into tbe possession of tbe appellant, tbe view which we have taken of them renders it unnecessary for us to determine wbetber they are sucb as are denominated material or immaterial. Admitting them to be of tbe former class, our conclusion is the same. Tbe evidence contained in tbe record fully satisfies me that tbe respondents executed and delivered tbe warrant of attorney in its printed form, tbe printer’s blanks being in part unfilled, with tbe understanding that sucb blanks were afterwards to be supplied by tbe bolder or party interested, with proper and suitable words to make tbe instrument complete and effectual for tbe purposes intended. We do not say that we find any express understanding to that effect, but it is implied from an abundance of tbe most convincing facts and circumstances. It is hardly controverted on their part, but their case in this regard is made to rest on tbe more technical ground that any alteration of an instrument, in a material part, made after delivery, by a party in interest, without tbe assent of tbe other parties, avoids it. This is tbe ground upon which tbe case was decided by tbe circuit court, as appears by tbe opinion of tbe judge, which is sent up with tbe record. It is unnecessary therefore to enter upon a minute comparison or analysis of tbe testimony of tbe witnesses and 'other evidence upon this subject. It is sufficient to say that from tbe condition of tbe instrument at tbe time of its delivery, tbe nature of tbe blanks which were left for tbe purpose of allowing future insertions, tbe fact that tbe more material and important ones, sucb as the date, amount and rate of interest of tbe note, were in fact filled, tbe circumstance that tbe respondents, one of whom was upon tbe stand as a witness, do not deny tbat sucb was their intention, and the proof that the practice of delivering such instruments with the printer’s blanks unfilled, with the understanding that they were subsequently to be filled by the holder, very generally prevailed in Milwaukee at the time, make it perfectly clear to us that such was the understanding on the part of the respondents. Upon this state of facts we are of opinion that it was not unlawful or improper for the appellant to complete the instrument in accordance with the original intention of the parties. It was but doing what the respondents, by their previous acts, if not words, had most plainly and unmistakably authorized and directed. No mistake or fraud is alleged to have occurred in the filling up of the blanks. It is not pretended that the implied instructions were not faithfully fulfilled, nor that the instrument as completed is not what it was originally designed to be; but the respondents seek to take advantage of a technical principle to set aside and defeat a judgment which the facts show to be just and fair. Under such circumstances we must confess that the claim of the respondents appears to us rather ungracious.

"We do not propose to enter into a review of any of the numerous authorities which are to be found on this subject. The general doctrine is well established, that an alteration may, by consent of all parties, be made after as well as before execution and delivery, and that such consent being shown, the instrument as altered, will be held to be valid. It is thus stated by Judge Stout in Speake vs. The United States, 9 Cranch, 28; “ It is clear, at the common law, that an alteration or addition in a deed, as by adding a new obli-gor, or an erasure in a deed, as by striking out an obligor, if done with the consent and concurrence of all the parties to the deed, does not avoid it. And this principle equally applies, whether the alteration or erasure be made in pursuance of an agreement and consent prior or subsequent to the execution of the deed; and the cases in the books in which erasures, interlineations and alterations in deeds have been held to avoid them, will be found, on examination, to have been cases in which no such consent had been given.” Such alteration is considered equivalent to a re-execution and redeliver j, and tbe instrument as altered is considered as tak- - ing effect from that time. Tbe only apparent exception to tbis rule is in those cases where tbe deed, to be effectual, must be acknowledged, and then it is held that a re-acknowledgment is necessary. No distinction is made, and we can see no good ground for one, between alterations thus made by tbe parties themselves, or one of them, and those which are made by a stranger to the contract. When it is made by a person in interest and to his own advantage, it may induce us to scrutinize the transaction more closely, but the consent being clearly proven, it makes no difference who made it.

Cases where such alterations have been made upon express consent, are very frequent. Indeed, many are such that they were susceptible of no other proof, for they are instances where the entire deed or contract of the parties was filled up over their seals and signatures attached to a piece of blank paper. Many of them hold. that consent may be implied as well as expressed, and appear to take no distinction in this respect between material and immaterial alterations. Others hold that assent can only be implied where the alteration is immaterial; and others again, that the circumstance of the alteration being immaterial, authorizes a presumption in law of an authority or consent to make it. Without attempting to examine or discuss the correctness of these different theories, or to determine how far the doctrine of implied consent may with safety and propriety be applied to material alterations, we say, that conceding those under consideration to have been such, we conceive it perfectly safe and proper to apply it to the present case. The facts and circumstances in evidence to this point are clearly as cogent and conclusive as if there had been the testimony of one or more witnesses to verbal directions of the same kind ; and if there had, the question of the warrant of attorney-being thereby made void, could not, according to the authorities, have been successfully raised.

In making this disposition of the question, we place no reliance whatever on the practice which prevailed in Milwau-&S cons^u^n§ a l°cal custom wbicb is to influence or tbe decision, of courts. As a custom, it cannot and ought not to be upheld. It is a most slovenly, loose and censurable practice, and one which we do not desire to approve. But the question with us is, whether the warrant, under the circumstances, is valid. In deciding it, we are to be governed by the law as we find it. And in doing so, we cannot vary our decision because we may thereby indirectly or incidentally countenance or encourage a practice which' we would otherwise heartily condemn. We consider the practice only as a circumstance tending to throw light upon the real intention of the parties.

The other questions presented by the record are of less importance. That of usury has been already decided by this court. Richards vs. Globe Bank, 12 Wis., 692. See also Newman vs. Kershaw, 10 Wis., 333. In the iiipt named case, it was decided that the law of the place of payment does not necessarily govern or fix the rate of interest; but that when the law of the place where the parties reside allows a greater or different rate, the parties may be permitted to contract with reference to it; and if it appears that they did so contract, and the contract is valid according to that law, it will not be declared usurious and void because it exceeds the rate allowed by the law of the place, of payment. In this case, there can be no doubt that the parties intended to be governed by the laws of this state; and as the charter of the company, the maker of the note, allowed it to borrow money upon any rate of interest which might be agreed, no question of usury can be made. (Sec. 21, chap. 450, Laws of 1852.)

The alleged conversion of the town bonds pledged as collateral security for the payment of the note, is not made out. No sale was in fact made. Nothing was done which impaired or cut off the pledgor’s right of redemption. The bonds have always remained in the hands of the holder of the note, subject to redemption on payment of the principal sum loaned and interest, which is all that could be reasonably and legally asked or expected.

Tbe judgment of tbe circuit court is reversed, and tbe cause remanded with directions that tbe suit be with COStS.