White v. Duggan
| Decision Date | 24 June 1885 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | George White, Judge of Probate, v. R. A. Duggan & others |
Exceptions overruled.
J. L Eldridge & J. E. Cotter, for one surety.
E. G Pratt, for the other surety.
J. F. Wiggin & B. M. Fernald, for the plaintiff.
OPINION
This is an action on a probate bond. The following facts are relied on as a defence by the sureties. Having signed another bond which turned out to be wrong in form, they signed this one in blank at their principal's request, and upon his representation that the penal sum in the former bond ($ 2000) was satisfactory, and that the new bond was to be for the same amount. The principal filled out the blank with a larger penal sum, and delivered the bond, but subsequently told the sureties that it was in the penal sum of $ 2000, which they believed until after this action was brought.
It does not appear in terms that the representation that the penal sum of the former bond was satisfactory was false, or that the judge of probate did not require the larger sum for the first time when the second bond was offered. And if the bill of exceptions should be taken at all strictly against the defendants, it would seem that whatever expectations they may have entertained as to the action of the Probate Court when they handed the blank bond over to their principal, they handed it to him to be filled in as the Probate Court might require, being chargeable with knowledge that the time for final action upon the matter had not yet come. In this view of the facts, the only question is whether the case is governed by Burns v. Lynde, 6 Allen 305, and, more especially, by Basford v. Pearson, 9 Allen 387; and we are of opinion that it is not. In Burns v. Lynde, a deed had been delivered executed in blank, and a parol authority was relied on to make valid a subsequent filling in of the blanks in the absence of the grantor. The filling in of the blanks stood on the same footing as signing and sealing, and could be authorized only by a power under seal. Basford v. Pearson applied the same principle, without further discussion, where a deed was signed and sealed by husband and wife, and he subsequently filled in the blanks and made alterations, with the knowledge of the grantee, in the absence of the wife and by her parol authority, and then delivered the deed. It may be somewhat hard to reconcile the latter case with those decisions which sustain the filling in of blanks in the presence of a party who has previously signed and sealed, even after delivery, on the ground that this is equivalent to a new delivery. For the reason given imports that an authorized delivery will cure a defect of authority in the writing, which seems indisputable. 2 Bl. Com. 307. Perkins, pl. 130. But we do not understand that it was intended to deny this principle, as it is expressly recognized by the same judge in Burns v. Lynde, 6 Allen 310. At all events, when the grantee or obligee is ignorant of the order in which the several parts of the instrument are written, and the delivery to him is duly authorized, he is entitled to assume that the instrument was so written as to bind the grantor or obligor from whose control it comes. We should add, that, in this Commonwealth at least, we cannot question for an instant that the authority to deliver merely may be given by parol. This does not seem to have been doubted in Basford v. Pearson. See Parker v. Hill, 8 Met. 447; Foster v. Mansfield, 3 Met. 412. To admit a doubt on this point would shake many titles.
If we are to interpret the bill of exceptions more favorably for the defendants than we have done thus far, and to take it that they only authorized the bond to be filled in with a penal sum of $ 2000, -- and even if we take the further step of assuming that limitation to have carried with it the understanding between them and the principal that they only assented to a delivery if the bond was filled in as they expected it to be, -- we are still of opinion that no defence is made out. We are aware that there are several cases more or less opposed to our conclusion. People v. Bostwick, 32 N.Y. 445. Ohio v. Boring, 15 Ohio 507. United States v. Nelson, 2 Brock. 64. Preston v. Hull, 64 Va. 600, 23 Gratt. 600, and cases cited. But we think that the prevailing tendency, both in this State and elsewhere, has been in the direction we have taken. Thomas v. Bleakie, 136 Mass. 568. Butler v. United States, 88 U.S. 272, 21 Wall. 272, 22 L.Ed. 614. Dair...
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