United States v. Nelson

27 F. Cas. 82, 2 Brock. 64

• Court: U.S. Circuit Court for the District of Virginia
• Decided: November 15, 1822
• Status: Published

Opinion

MARSHALL, Circuit Justice.

John Archer was appointed paymaster of the twentieth regiment of infantry, in the army of the United States. The defendants, Nelson and Myers, agreed to become his securities, and to execute such bond as was required by law. A printed paper, in the usual form prepared for official bonds to be given by paymasters, was presented to and executed by them. At the time of its execution and delivery, all those parts which are usually written, including the penalty, the names of the obligors, and the date, were blank. John Archer, the principal, had not executed it. This blank bond was afterwards filled up in the absence of the said Nelson and Myers, without their knowledge, and without any authority from them, other than is implied from their having executed the said paper with intention to bind themselves as the sureties of the said Archer, and with full knowledge of the object of the said bond. The jury further find, “that the paper, so as aforesaid signed, sealed, and delivered. was accepted by the proper authorities of the United States as the official bond of the said Archer, and of the defendants as his sureties ”

The defendants pleaded a special non est factum, and the jury has found the facts, and referred to the court the question, whether this be the deed of the defendants? At the common law, all instruments under seal were considered as deeds. Every contract not under seal was considered as a parol contract To the consummation of every deed, the solemnity of a delivery is indispensable. Opinion of Marshall, C. J., in Bank of U. S. v. Danbridge, 12 Wheat. [25 U. S.] 90. Until delivery, the writing does not become the deed of the party who had sealed it. It is also necessary to the validity of a deed that it be in writing. Shep. Touch, p. 70. These two circumstances must concur, or there is no deed binding on the party whose seal is affixed to the paper. The rule requiring that the deed should be written, implies, necessarily, that it binds no further than the writing binds. Perk. Com. § 118, says: “If a common person seal an obligation, or any other deed, without any writing in it, and deliver the same unto a stranger, man or woman, it is nothing worth, notwithstanding the stranger make it to be written that he who sealed and delivered the same unto him is bound unto him in £20.” There are many other authorities to the same effect. It would be useless to quote them, because the principle is not denied. In the case now under consideration, there being no sum of money mentioned in the bond, the defendants were no more bound by the instrument they had executed, at the time of its execution, than if the paper had been all blank. The United States could not have availed themselves of the bond in its then condition. The whole question then, is, whether the defendants have authorized any other persons to fill up this bond, íd such manner as to create an obligation which did not exist when it was delivered.

It is found by the jury that the defendants executed this bond with the knowledge that it was to be received as an official bond, and with an intention to bind themselves as the sureties of John Archer, as paymaster, by this sealing and delivery of it, but that no special authority was given to any person to fill it up. nor any authority whatever, other than is implied from their sealing and delivering the paper. Does this act authorize any person whatever to insert the penalty and other written parts in the bond—and does it make the writing, in its present form, their deed? If this question depended on those moral rules of action which, in the ordinary course of things, are applied by courts to human transactions, there would not be much difficulty in saying that this paper ought to have the effect which the parties, at the time of its execution, intended it should have. But there are certain technical rules growing out of the state of things, when many of our legal principles originated, which are firmly in-grafted on the law, and still remain a part of it, though the circumstances in which they had their birth are totally changed. Perhaps every distinction between a sealed and an unsealed instrument is of this description. But the distinction, and the rules which are founded on it, have taken such fast hold of the law, that they can be separated only by the power of the legislature. Till that authority shall interpose, the courts must respect the rules as they are found in adjudged cases Those cases must be referred to in order to determine whether this be the deed of the defendants. In the case stated in Perkins, the inference to be fairly drawn from the sealing and delivery of a paper, on which nothing was written, is, that the person to whom it was delivered was authorized to write over the signature and seal, if not any obligation he pleased, an obligation for some certain thing previously agreed on by the parties, and that the person making the instrument confided in him to whom this implied authority was given, for its faithful execution. It means this, or it means nothing. Yet the obligation written over this signature was declared to be of no validity It follows, that the sealing and delivery of a paper does not imply an unlimited power to write even what had been previously agreed on by the parties. Shepherd, in his Touchstone (page 51), referring to this section of Perkins, says: “The agreement must be all written before the sealing and delivery of it; for if a man seal and deliver an empty piece of paper or parchment, albeit he do withal give commandment that an obligation or other matter shall be written in it. and this be done accordingly, yet this is no. good deed.” This-declaration, if it be law, is conclusive, with respect to a paper which is sealed and delivered as the act and deed of the party, but which, at the time of the sealing and delivery, has nothing written in it. I proceed to those cases in which an obligation is written on the paper, which is incomplete at the time, and is afterwards made complete, or in any manner varied.

The case of Markham v. Gonaston, which is reported in Cro. Eliz. G2G, Moore, 547, was argued at great length, and considered by. the court. That case depended on the question, whether an obligation executed with blanks for the Christian name and place of residence of a person named in it, became void by filling up those blanks. The-point was argued in three different suits. The first suit was brought .against Fox, on an obligation made by Sir Francis Wil-loughby and said Fox, and upon the plea of non est factum being pleaded, the plaintiff became nonsuited. The party injured then brought an action on the case against the person who made the alteration, who pleaded that he had written the obligation-by the command of Sir Francis Willoughby, with those blanks in it: that it was in this state executed by Fox: that the blanks were then filled up by order of Sir Francis Wil-lougi-jy, with the assent of Fox: after which Sir Francis executed the obligation. This plea was held ill on demurrer, and the court said, that the alteration was material, and that it avoided the bond. Moore in his report of this case, says (note) that the plaintiff afterwards brought a new action on the obligation against Fox, who pleaded the special matter, and concluded that it was-not his deed. The plaintiff replied, that it was filled up with the assent of both of the obligors; and upon demurrer it was adjudged for the plaintiff in B. R. The note in Moore does not give us the words of the replication, but the term “assent” certainly implies an assent expressed, and the special plea of the person who made the alteration, as appears from Coke, was, that the alteration was made by order of one of the ob-ligors with the assent of the other. Har-grave and Butler, in their notes on Co. Litt. quote this case in the following terms: “Obligation, with a condition to save harmless, against Tracy, with a blank. A stranger, after the delivery, fills up the blank with a Christian name, with the assent of the obli-gor, yet adjudged to avoid the deed because material. But if the addition is not material, as the addition of a county, and it be by a stranger, it doth not avoid the deed, though if by the party himself, it doth avoid it.” In the case of Zouch v. Clay, reported in 1 Vent. 185, 2 Lev. 35, the defendant pleaded, that at the time of his executing the bond, there was a blank in it, which. was afterwards filled up, with the name of .another obligor, and so it is not his deed. The plea was held ill. Ventris says, the court considered the insertion of the name •of a new obligor, as not affecting the person who had previously executed the obligation, it remaining the same as to him. Levinz, in his report of the case, says, that the name was inserted with the consent of all the obligors, and,- therefore, the obligation was still binding. In these cases, the obligation was complete, although the blanks had never been filled up. The alteration did not create or enlarge the obligation, or vary it to the injury of the obligor. They do •not, therefore, contradict the law, as laid down in Perkins and Shepherd’s Touchstone. In the case put by them, the obligation, if it exists, is created by the writing inserted after delivery. In the subsequent cases which have been noticed, the obligation was complete when it was delivered. The alteration was in the words, not in the obligation of the instrument, and that alteration was made with the assent of parties. I understand this to be an assent to the specific alteration; and to be an assent, not implied, but expressly given.

A case has been cited from 5 Mass. 53S (Smith v. Crooker), decided by a judge, whose opinions deserve to be greatly respected, and whose decisions must always have .great influence with any court in which they ore quoted. The case is this: An official bond was prepared for C., with a blank for the name of the surety. Cushing, after-wards agreed to become surety, and executed the bond. The blank was filled up with his name in his absence; and then C. also executed it. Cushing pleaded non est fac-tum to this bond, but it was determined to be his deed. No person will controvert this decision. The alteration was immaterial, and not being made by the obligor himself, could not, on any sound principle of law, affect the instrument. But a principle is laid down in the opinion, which goes much farther than the decision. Judge Parsons lays down the general rule, that any material alteration will avoid the bond, but states as an exception to this rule, an alteration made by consent of parties. He adds that, “the party executing the bond,- knowing that there are blanks in it, to be filled up by inserting particular names or things, must be considered as assenting that the blanks may be thus filled, after he has executed the bond.” Any distinction between an express and an implied assent, in a case where the implication is so strong, as it must be where a blank is to be filled of course “with a particular name or thing,” is here denied. In such a case, there is undoubtedly, good sense in the ■opinion which rejects this distinction; but I am not sure that it is sustained by law. He who adds to the obligation of another, must do so by the authority of that other; and I know of no case, in which, as respects a deed, such authority is implied in a court of law, certainly of none, when not even the person is designated, by whom the authority is to be executed. But the proposition laid down by the very able judge who gave this opinion, does not necessarily extend to the case at bar. He lays down his principle, in a case “where a blank is to be filled by inserting particular names or things;” that is, where the blank is to be filled up only in one manner. But this principle does not apply to a blank to be filled up with a sum of money, which sum is not precisely fixed. It is also observable that in reviewing the cases on which he founds his opinion, the judge takes no notice of Perkins or Shepherd; and the case before him, as well as that which he supposes in giving his opinion, was not produced by a paper which was blank, or of no obligation whatever, when it was delivered. A blank of such vital importance, that the paper, while it remained, was a nullity, does not seem to have been in bis view. For this reason, too, whatever authority may be ascribed to the opinion of Judge Parsons, and no person acknowledges his authority more willingly than myself, its application to the case at bar may well be doubted.

In Russel v. Langstaffe, Doug. 496 (2 Doug., Frere’s Ed., 514) it is determined by the court, that “the indorsement on a blank note, is a letter of credit for an indefinite sum.” The same principle is asserted by this court, in Violet v. Patton, 5 Cranch [9 U. S.] 151, 2 Pet. Cond. R. 214. If these decisions apply to sealed instruments, they de-. cide the cause now before the court; for the presumption is at least as strong, that the defendants intended, when they executed this bond, to allow the blank to be filled with such sum as the government would require in the official bond of a regimental paymaster, as that the person who signs a blank paper, intends to give indefinite credit to the person who receives it. They, would, too, completely overturn the principles laid down in the old books. But there are certain dif-erenees in law between sealed and unsealed instruments, which make it difficult to apply the principles of one species of contract to the other; all unsealed instruments being considered as verbal contracts, they require neither writing nor delivery; they were not governed by those technical rules which are founded in the necessity of writing and delivery. General and liberal principles, therefore, which are laid down in such cases, cannot safely be applied to sealed instru--ments, unless the courts have expressed the intention so to apply them.

But the case on which most reliance is placed, is that of Speake v. U. S., 9 Cranch [13 U. S.] 28.² Speake, Beverly, and Eliason,; bad executed an embargo bond, and after-wards the name and seal of Eliason were removed, and those of Ober substituted in their place. To an action brought on this bond, the defendant, Beverly, pleaded that this alteration was made “without his consent, license, or authority.” The plaintiff replied that the alteration was made “with the assent, and by the concurrent license, direction, and authority of all the defendants, and of the said Ebenezer Eliason.” The defendant demurred to this plea, and the court overruled his demurrer. On appeal to the supreme court, the judgment was affirmed.

The pleadings present the ease of an express authority to make the alteration, and the only questions were, whether this express authority could avail the obligee, and whether it could be given by parol. Whatever previous difficulty might have existed on this point, there is none now. The case of Speake v. U. S. [supra], has settled them; but that case goes no farther; it does not decide that an obligation may be created originally, by virtue of an authority which is not expressly given, but is implied from the sealing and delivery of a paper, which, in its existing state, can avail nothing. This point does not appear to have been ever decided in the case of a sealed instrument. The case of Speake v. U. S., in determining that parol evidence of such assent may be received, undoubtedly goes far towards deciding it; and it is probable that the same court, may completely abolish the distinction, in this particular, between sealed and unsealed instruments. .In this place I do not feel authorized to disregard it. In the English courts, from which the rules applicable to this subject are derived, the distinction is still maintained in a case which bears some analogy to this. The right of one partner to bind another, so far as respects the business of the trade, and the partnership property, is unquestioned; yet, if a partner affix a seal to the instrument, by which he promises in the name of the company to pay money, the English judges, with what propriety I shall not now say. have determined that the company is not bound by it.³

1 say with much doubt, and with a strong belief that this judgment will be reversed, that the law on this verdict is, in my opinion, with the defendants.

Notwithstanding the strong distrust expressed by the chief justice, of the correctness of the above decision, no appeal was taken from it. [Bee White v. Vermont & M. R. Co., 21 How. (62 U. S.) 578.]

2 3 Pet. Cond. R. 244. See, also, Steele’s Lessee v. Spencer, 1 Pet. [20 U. S.] 552. In an action of ejectment, a deed was produced executed by Spencer, in which Steele was grantee, but it was apparent that the deed had been altered in this, viz., that the name of the grantee wherever it occurred, was written on an erasure, and with ink of a different colour: as also the words “Ross,” and “Ohio,” in describing the residence of the grantee, and these alterations were not accounted for in any manner by the testimony in the cause. The court below instructed the jury, that if the deed was altered in a material part, after it was sealed, attested, and acknowledged, such alterations made the deed absolutely void. But the supreme court said this was error, although it might be true that a material erasure or alteration in a deed, after its execution, might avoid the deed, yet, the instruction ought not to have been given in the terms used by the court. Whether erasures and alterations had been made in the deed or not, was a question of fact proper to be referred to the jury; but whether they were material or not, was a question of law which ought to have been decided by the court.

3 But see a relaxation of this principle in Anderson v. Tompkins [Case No. 365], and the authorities there cited. See, also, 2 Selw. N. P. tit. “Partners,” c. 2, and the notes. In Virginia, a scroll affixed by the obligor by way of seal, is of the same validity as if it were an actual seal of wax. 1 Rev. Code, p. 510; and where the formal parts of the bond were printed, and the blanks filled up before the obligor signed it, the scroll being printed; this was-held to be a good sealing within the statute. Buckner v. Mackay, 2 Leigh, 488.