Tulane University of Louisiana v. O'Connor

• Decision Date: 21 June 1906
• Parties: TULANE UNIVERSITY OF LOUISIANA v. O'CONNOR et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

192 Mass. 428

78 N.E. 494

TULANE UNIVERSITY OF LOUISIANA v. O'CONNOR et al.

Supreme Judicial Court of Massachusetts, Suffolk.

June 21, 1906

COUNSEL

E. R. Thayer and J. F. Curtis, for plaintiff.

Paul & Barnard, for defendant Schlegelmilch.

Clarence F. Eldredge, for defendant Rudd.

H. V Cunningham, for defendants Emerson and Crowley.

OPINION

MORTON J.

This is an action against the guarantors of a lease made by the plaintiff to one O'Connor of the Hotel Plaza in Boston to recover four months rent. O'Connor, the lessee, was a defendant but before opening the case to the jury the plaintiff discontinued as to him, and also as to one other defendant. There was a verdict for the plaintiff and the case is here on exceptions by the remaining defendants to certain rulings made by the court at the close of the evidence and to the refusal of the court to give certain rulings requested by them.

The principal contention of the defendants is that after they had signed it, the guaranty was materially altered by placing seals against their respective signatures without their knowledge or consent. There was evidence tending to show that the fact in regard to the seals was as alleged by them and that the seals were probably placed there by one Hamlen, a real estate agent, who had charge of the property for the plaintiff and who died before the trial. The month and the day of the month which were left blank in the date when the defendants signed, were filled in in his handwriting, and no objection thereto has been made by the defendants. The testimonium clause called for seals and Hamlen may well have supposed that he was to affix them as well as to insert the month and the day of the month. It was undisputed that the defendants signed the guaranty, and that it was delivered to O'Connor after they had signed it and before O'Connor had signed the lease and that O'Connor signed the lease afterwards and before it was sent to the plaintiff. It was also undisputed that the lease and guaranty were sent by Hamlen to the plaintiff at New Orleans and that the lease was duly executed by representatives of the plaintiff on its behalf pursuant to a vote of the board of administrators of the Tulane Educational Fund which, it is not denied, was the proper body to act for and bind the plaintiff and that thereafterwards O'Connor entered and held under the lease. When the lease and guaranty were sent to the plaintiff they were in their present condition in all respects except that the lease had not been executed on behalf of the plaintiff. The defendants asked the court to rule on this branch of the case that 'the putting of the seal opposite the defendant's name without his knowledge or consent is a material alteration and voids the instrument altogether and the plaintiff cannot recover.' The court declined to rule as thus requested, but ruled as follows: 'There is no evidence that Hamlen was authorized to bind the plaintiff by a written lease or to make any contract in writing for the occupation of the premises. If there were no seals opposite to the defendants' signatures when they signed the guaranty, and if Hamlen or some one in his office subsequently affixed seals there without authority and then forwarded the paper to the plaintiff; and the plaintiff examined and considered it for the purpose of determining whether to execute it and deliver it to O'Connor without knowledge of the change made by Hamlen, and if O'Connor accepted it and held under it, the liability of the defendant in this action is the same as if no seals had ever been placed upon the guaranty.'

We think that the ruling was right. It is not contended that there was any evidence that Hamlen was authorized to bind the plaintiff by a written lease, or to contract in writing for the occupation of the premises or that the plaintiff had any knowledge that the seals had been affixed by him, if he did affix them, after the guaranty had been signed by the defendants. There was a good consideration for the guaranty as signed by the defendants and the addition of the seals must be regarded as the act of a stranger and therefore as not affecting the obligation created by the unsealed instrument or the right of the plaintiff to maintain an action upon it as such. See Jeffry v. Rosenfeld, 179 Mass. 506, 61 N.E. 49. There is nothing to show that the plaintiff ratified Hamlen's act in putting on the seals or that it is...