44 N.Y.S. 921 | N.Y. App. Div. | 1897
Lead Opinion
I am of the opinion that the contract between the defendant Simpson and the Wrought Iron Range Company must be found in the papers which were executed by both, at the time the range in question was delivered. The memorandum put in evidence by defendant, without reference to the notice printed in red ink on its back, is, in effect, a bill of sale of the range, in which the terms of the sale are fully stated. By those terms the defendant is to give his note for sixty-nine dollars, bearing even date therewith, and to become due June 1, 1895, and the range is not to be transferred by defendant until fully paid for, and no receipts, discounts or offsets are to be accepted against such note of sixty-nine dollars. The company, on its part, guarantees the proper working of the range, as therein particularly stated, and to furnish for a period of five years, free of charge, any parts of the range which, with ordinary usage, get out of repair.
It is also expressly provided in such agreement as follows : “ This is the only agreement or stipulation recognized in the purchase and sale of said range, and no alteration of above conditions, or erasure by salesman, is authorized, or will be recognized by said company.” When defendant Simpson received this agreement from the company and signed a duplicate thereof, we must presume that he knew the contents thereof. Without including the printed notice on the back of such paper as part of the contract, or charging defendant with knowledge of its contents, nevertheless, as to the terms of the writing which he then signed, he must (in the absence of any proof of a fraudulent concealment) be held to have understood them, and to be bound by the contract therein expressed. “A contractor must stand by the words of his contract, and if he will not read what he signs, he alone is responsible for his omission.” (Upton v. Tribilcock, 91 U. S. 45, 50; Chu Pawn v. Irwin, 82 Hun, 607, 610; Moran v. Mclarty, 75 N. Y. 25.) He was, therefore, not only notified in plain print, but he signed an agreement to the effect that the note which he must give for the range was a sixty-nine dollar note, and that any change from that price made by the sales
It makes no difference that this written contract was not shown him until after the selling agent had agreed to let him have the range for sixty-four dollars, and he had executed the note under such an arrangement When he was called upon to execute that writing he discovered the only terms upon which the principal was willing to sell. He was notified that the principal had but one price, and that the agent had no authority to make any other; and it was his duty thereupon to have recalled his note and refused to take the range unless he was willing to give the price and accept the terms, as printed in the bill of sale tendered him.
He did not recall his note, but retained the range and executed the agreement, thus securing to himself the benefit of the seller’s guaranty, and obligating himself not to transfer the range till paid for. Clearly, he took and held the range under that bill of sale, and the contract between himself and the seller was as printed therein. All the talk on the part of the agent, about selling for sixty-four dollars, was merged in that printed contract. (Engelhorn v. Reitlinger, 122 N. Y. 76, 81.) His alteration of the price therein specified was utterly void, and was agreed to be so over the defendant’s own signature
It is to be noticed, also, that the defendant does not claim to have been ignorant of the terms of the agreement so signed by him. He says: “ At that time I did not particularly notice it. I did not read it all. I don’t think I noticed the red print on the back of it.” He also testified: “ I don’t think I read all that red print on the back of the agreement, called Notice Special, at the time I got it. I think it was on there when I got it.” This is the full extent of
Assuming, then, as we must,. that the contract under which defendant purchased the range was the printed one, signed by himself and the payee of the note, he was obligated to execute and deliver to the payee just such a note as is found upon the face of the one he did execute. And any agreement indorsed upon the back thereof, to the. effect that such note was to be binding for the sum of sixty-four dollars only, was a variation of the actual contract, and was utterly nugatory as between himself and the payee. 1 concede that an agreement, limiting the maker’s liability upon a note, might be indorsed upon the back of it, and would be read as apart of the note, if such agreement was put there to make it conform to the real contract between the maker and the payee. But if the real contract was expressed upon the face of the note, any indorsement upon the back tending to alter or modify it, put there by the maker or any person not authorized to make such change, could not be used as a lawful modification of the note, and hence could not be read into the note as a part thereof.
Suppose the defendant, in this case, had executed and delivered this note without any indorsement thereon, but the agent had executed and delivered to him a written agreement to the effect that only sixty-four dollars should be collected thereon, and had signed thereto the payee’s name, it seems clear that such an agreement would not, as against the payee, bar a recovery for the whole amount of the note. The agent’s want of authority to make such an agreement would be too plainly established by the bill of sale under which defendant purchased. And, if the agent should repossess himself of that agreement and destroy it, it could not be said that he had thereby, in any material part, affected the actual contract between the maker and the payee.
For the same reason I conclude that a destruction of the indorsement, placed by the' agent upon the back of this note, does not change the contract between the maker and the payee, either as expressed by the note itself, or as actually made between them.
The note, as expressed upon the face of it, and the printed bill of
But if it be conceded that, under the circumstances, the contract of the agent must, as regards this defendant, be held binding upon his principal, and the indorsement on the note must, therefore, he deemed a part of the note, the question arises whether, under the evidence, it can he said that a defense has been established against the entire note. Clearly, as against his principal, the agent exceeded his authority in agreeing to take less than sixty-nine dollars for the range, and in writing upon the note anything that 'would operate to reduce defendant’s liability to less than that amount; and, if such agent himself obliterated such indorsement before delivering the note to his principal, and such act was done without the knowledge or consent or ratification of such principal, it would seem that the alteration complained of was the act of an unauthorized third person, and that, therefore, it was not operative to avoid the note. (Gleason v. Hamilton, 138 N. Y. 353.)
It cannot be justly said that an agent who, having made an indorsement that he had no authority to make, obliterates it, in order to conceal from his principal the unwarranted act, is acting for his principal in so doing. Concede that the note was a valid obligation for sixty-four dollars only against the maker, when delivered to the agent, it cannot be avoided by the maker on account of the alteration complained of, without it appears that some person interested in the enforcement of the note has made that alteration. (1 Greenl. on Ev. § 566 ; Warirng v. Smyth, 2 Barb. Oh. 133 ; Martin v. Tradesmen's Ins. Co., 101 N. Y. 498, 503.) And when the note in its unaltered condition is not delivered to the payee himself, but to an agent of his, who has a personal interest to make the alteration, and the alteration is such that, when made, it is not visible, but leaves' the note appar
These considerations lead to the conclusion that, on the evidence, no defense was made to the note in question, and the judgment for defendants should be reversed.
Landon and Merwin, JJ., concurred in result; Herrick and Putnam, JJ., dissented.
Dissenting Opinion
I dissent. The plaintiff having purchased the note after it was due, took it subject to all defenses the defendants would have had
If this was an action wherein the. title to the range was in question then the reasoning of Justice Parker would be conclusive. For I concede that the agent had no right to make the sale for less than sixty-nine dollars, and the defendants, I think, must be held to have notice of the limitations upon his agency.
The range company could have repudiated the sale for less and have returned the note ; by retaining it they ratified the transaction.
The note and the indorsement upon it made at the time of signing the note and before its delivery, constitute together but one ' instrument.
The defendants can only be held liable upon the instrument signed by them and received by the agent, not upon one they did not sign or agree to, no matter whether the agent was authorized to accept such an instrument or not; as a matter of fact they did not, as the jury has found, become parties to such an instrument as the plaintiff claims was the only one the agent was authorized to receive.
The instrument sued upon is not the one signed and agreed to by the defendants. The defendants are not responsible for the change. They have had no opportunity to make any alteration themselves. There is no evidence as to the condition of the instrument when it came into the possession of the range company, and there is nothing from which we can infer that the change was made by the agent, and I do not think that we' have the right to assume that he made it.
But even if the agent did change it, the defendants’ liability is still no different; he was not their agent, and it is not the instrument they signed.
The evidence as to chemicals and the test made in court, I think, was competent.
The defendants had sworn to an indorsement upon the instrument, the instrument produced had none, and so far as appearances indicated, never had one upon it. The note so produced with no sign or mark that there had ever been any indorsement upon it, and nothing to show that anything had ever been removed from it, was something calculated to throw doubt upon the defendants’ story of the indorsement.
I can see no objection to making the test in court. I apprehend that the testimony of a chemist would be received to show that there are chemicals that will remove ink marks from paper without leaving any ink or stain and without injuring the fibre of the paper. Why not then receive an actual demonstration of that fact from any one able to make it ? The fact that the jury might think that the holders of the note might have used the particular chemicals used to make the experiment or demonstration upon the trial, is not an answer to the question as to whether such evidence is competent or material.
The judgment should be affirmed.
Putnam, J., concurred.
Judgment and order reversed and a new trial granted, costs to abide the event.
Concurrence Opinion
I concur in the result. I doubt whether the plaintiff who does not disaffirm the acts of the payee’s agent in obtaining the note, but seeks their fruits, can object that the indorsement was unauthorized, but he can object that the erasure of the indorsement, if made by the agent, was unauthorized, and, therefore, I concur in the last ground of the opinion of the presiding justice.
I think the evidence as to the ink eradieator was improperly received, since evidence of the existence of means is irrelevant, unless accompanied by some evidence of their use.
The defendant testified that the indorsement was upon the note when delivered. The note itself was produced in evidence. It was also exhibited upon the argument before us. It shows no evidence of an erasure; to prove that it might have been removed by the ink eradieator without leaving any trace of its existence or erasure, was to suggest to the jury that the indorsement had thus been removed — a suggestion which the jury seem to have adopted ; the .suggestion was no evidence of the act.
